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Case 4:11-cv-02467 Document 2
Filed in TXSD on 10/14/11 Page 1 of 50
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
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PETITIONER,
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V.
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CASE NO. 4:11-cv-02467
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RICK THALER, DIRECTOR, TEXAS
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DEPARTMENT OF CRIMINAL JUSTICE,
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CORRECTIONAL INSTITUTIONS DIVISION, '
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RESPONDENT.
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_____________________________________________________________________________
THOMAS BARTLETT WHITAKER,
FIRST AMENDED PETITION FOR WRIT
OF HABEAS CORPUS OF A PERSON IN STATE CUSTODY
TO THE HONORABLE KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE:
HISTORY
On March 5, 2007, a Fort Bend County, Texas jury found Thomas Whitaker guilty of
capital murder. On March 8, 2007, the jury answered Texas’ “special issues” at punishment in a
manner that required the imposition of the death penalty. On June 24, 2009, the TCCA denied
Thomas Whitaker’s direct appeal. State v. Whitaker 286 S.W.3d 355 (Tex.Crim.App. 2009). On
June 30, 2010, the TCCA denied Thomas Whitaker’s post conviction claims for a writ of habeas
corpus. Ex parte Whitaker, WR-73,421-01 (Tex. Crim. App., June 30, 2010) (unpublished
opinion).
JURISDICTION
This court has personal jurisdiction pursuant to 28 U.S.C. § 2241(d) because Thomas
Whitaker was convicted in a Fort Bend County, Texas district court. Subject matter jurisdiction
is conferred by 28 U.S.C. § 2254.
FACTS
On December 10, 2003, Thomas Whitaker, his roommate (Chris Brashear), and a
neighbor (Steve Champagne) carried out a plan to murder Thomas Whitaker’s father, mother and
younger brother. 1 See, Whitaker, 286 S.W.3d, at 357-359. As related by the Texas Court of
Criminal Appeals, Thomas Whitaker deceived the family into believing that he was about to
graduate from Sam Houston State College and they went out to dinner to celebrate. Id. When the
Whitakers returned to their home in Sugar Land, Texas, Brashear shot and killed Thomas
Whitaker’s mother and brother, and wounded Thomas Whitaker’s father. Id. Brashear shot
Thomas Whitaker in the left bicep in order to create the appearance that Thomas Whitaker had
been ambushed. Brashear then fled the scene with Champagne who was waiting outside in a
getaway car. Id. Since at least 2000, Appellant had planned with several other individuals, at
different times, to murder his family. He made at least one attempt to murder his family before
December 10, 2003. Id.
Thomas Whitaker soon came under suspicion but denied involvement. Id. Kent Whitaker
retained Dan Cogdell and Jimmy Ardoin to represent his son. Id. In June of 2004, after Cogdell
informed him that Fort Bend County investigator Marshall Slot was convinced Thomas Whitaker
was responsible for the murders, Thomas Whitaker stole ten thousand dollars from his father and
fled to Mexico. See, id. In September of 2005, the FBI learned of his whereabouts. The
Mexican police arrested Thomas Whitaker and extradited him to stand trial for capital murder in
Fort Bend County, Texas. Id.
Cogdell resumed his representation of Thomas Whitaker. However, the evidence that
Thomas Whitaker had orchestrated the murder of his mother and brother was significant.
1
Norman Kent Whitaker (“Kent Whitaker”) is the father; Kevin Whitaker is the brother, and Patricia Whitaker is the
mother.
2
Brashear and Champagne had confessed and had agreed to tape numerous conversations with
Thomas Whitaker.
The State recovered physical evidence corroborating Brashear’s and
Champagne’s statements. Cogdell, therefore, concentrated on developing a punishment phase
defense and retained psychologist Dr. Jerome Brown to provide expert assistance. See, Exh. ‘A’
(Affidavit of Dan Cogdell).
Cogdell also sought to negotiate a life sentence. To this end, Cogdell proposed what he
called a “proffer” to Assistant District Attorney Fred Felcman. See, id. These negotiations were
handled very informally, consisting principally in a chance meeting with Felcman in a local
store. Id. Nonetheless, according to Cogdell, the sides agreed that Thomas Whitaker would
provide a written statement describing his role in the offense and taking responsibility for the
crime; in return, Felcman supposedly assured the defense that the Fort Bend County District
Attorney’s Office would not seek the death penalty. Cogdell maintained that Felcman told him
he wanted a factual account unleavened with mea culpas. See, id.
Ardoin drafted Thomas Whitaker’s statement based on attorney-client interview notes
and presented the statement to Felcman. Exh. ‘B’ (Affidavit of Jimmy Ardoin).
However,
Thomas Whitaker did not review or approve it. (31 RR 257-258.) According to Cogdell,
Felcman accepted the document, but then told him that it showed insufficient remorse for the
State to agree to a life sentence. Exh. ‘A’. Contrary to Cogdell’s claim, Felcman maintained in
post conviction proceedings that there was no proffer agreement, and that the Fort Bend County
District Attorney made the decision to seek death. Exh. ‘C’ (Affidavit of Fred Felcman). After
the negotiations for a life sentence broke down, Cogdell resigned. With guilt-innocence a
foregone conclusion, Kent Whitaker retained Randy McDonald (“trial counsel”) to investigate
and put on a punishment phase defense.
3
Trial counsel was faced with defending a client who had committed a bizarre crime that
would typically require a psychological explanation. Kent Whitaker implored trial counsel to
have his son examined by a psychiatrist and agreed to pay the costs. Exh. ‘D’ (2009 Affidavit of
Norman Kent Whitaker). Trial counsel was also aware that Thomas Whitaker had a history of
mental health and emotional problems serious enough to warrant professional intervention. Trial
counsel knew that Cogdell had hired Dr. Jerome Brown to treat Thomas Whitaker, and he knew
that Dr. O’Rourke had treated Thomas Whitaker in 1997. Exh. ‘E’ (Affidavit of Randy
McDonald). However, trial counsel did not retain a mental health professional, although both
the American Bar Association and State Bar of Texas Guidelines stress that having qualified
mental health experts involved in the defense of a capital trial is essential whenever the
defendant has a history of serious mental illness. 2006 State Bar of Texas Guidelines and
Standards for Texas Capital Counsel, §10.1(B)(1)(c), 11.7(F)(2); 2 2003 American Bar
Association Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases (“2003 ABA Guidelines”).
Trial counsel states in his 2009 affidavit that he conferred with Dr. O’Rourke; however, it
does not describe the content of any communications between himself and the mental health
experts who evaluated Thomas Whitaker before trial. Exh. ‘E’. According to post-conviction
counsel, David Schulman, trial counsel’s file did not contain notes of trial counsel’s
communications with the mental health experts or copies of Dr. O’Rourke’s report or Dr.
Brown’s report. Therefore, in state post-conviction proceedings, Thomas Whitaker contended
that trial counsel had provided ineffective assistance of counsel at the punishment phase because
2
See, also, id., at §3.1(A)(2)(“The defense team should contain at least one member qualified by training and
experience to screen individuals for the presence of mental or psychological disorders or impairments.”).
4
he did not investigate or present mitigating psychological evidence. Original Application for
Post Conviction Writ of Habeas Corpus (“OAPCW”), at 5-30.
However, Thomas Whitaker has a significant history of serious mental illness. Before
trial, Drs. Jerome Brown and Brendan O’Rourke made Axis I diagnoses that included mental
diseases of psychotic proportions with an etiology antedating the capital offenses. See, Exh. ‘F’
(1997 Report of Dr. Brendan O’Rourke; Exh. ‘G’ (2005 Report of Dr. Jerome Brown). Thomas
Whitaker’s psychological problems persisted over time with no indication of malingering. Exh.
‘H’ (2009 Report of Dr. Kit Harrison). However, trial counsel failed to retain a mental health
expert or a mitigation expert, and he tried this capital murder case without the assistance of cocounsel or an investigator.
CLAIMS FOR RELIEF
CLAIM ONE
IN VIOLATION OF DUE PROCESS, THE STATE, UNDER THE
PRETENCE OF ENGAGING IN PLEA NEGOTIATIONS, PROCURED A
PROFFER THAT IT USED TO PREPARE ITS PUNISHMENT PHASE
CASE AND TO CROSS EXAMINE THOMAS WHITAKER
The plea bargaining process, including the negotiation phase, is marked by both the
interests of justice and standards of good faith. United States v. Valencia, 985 F.2d 758, 761 (5th
Cir. 1993) (citing Santobello v. New York, 404 U.S. 257, 262-263 (1971)). In addition to the
requirement of honesty, a State’s counsel cannot act in a vindictive manner without offending the
Constitution. North Carolina v. Pearce, 395 U.S. 711 (1969). In Thomas Whitaker’s case, the
state violated due process by using the ruse of the plea bargaining process to get evidence it was
not entitled to obtain or use.
Thomas Whitaker’s former attorneys, Dan Cogdell and James “Jimmy” Ardoin, were
approached by prosecutor Felcman while they were in a retail store in Sugar Land, Texas.
5
Felcman proposed to the two attorneys that negotiations would be enhanced by the submission
by the defense of what came to be known as “the proffer”, a statement of the facts of the offense,
detailing Thomas Whitaker’s involvement in a strictly factual manner. Exh. ‘A’, at 3. According
to Cogdell, Felcman stressed that there should be no embellishment of the factual statement with
mention of remorse or contrition. Id. In exchange for a satisfactory proffer, Cogdell and Ardoin
were told that the State would remove the death penalty as a punishment option. Id.
Ardoin interviewed Thomas Whitaker and wrote a multi-paged document describing
Thomas Whitaker’s role in the murders. Id. Cogdell presented the document to Felcman as a
“proffer” in return for a life sentence. Id. However, according to Cogdell and Ardoin, Felcman
rejected the proffer as unsatisfactory because it did not contain and expression of remorse on
Thomas Whitaker’s part. Id. The State proceeded to seek the death penalty and retained the
document Ardoin drafted for use at trial.
The State’s subterfuge regarding the plea negotiations surfaced during Kent Whitaker’s
guilt-innocence phase testimony. The lead prosecutor baited Kent Whitaker into mentioning the
proffer by asking him why Thomas had not confessed upon returning from Mexico where he had
fled:
A. (Kent Whitaker) There was no confession. There was a proffer offered
to the District Attorney's office a year and, what, three or four months ago.
Q. (Mr. Felcman) Uh-huh. You know, of course, that proffer was
absolutely inadmissible, and I could not have used it for any purposes.
You understand that?
A. No, I didn't understand that.
Q. Okay.
25 RR 105
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While acknowledging that the proffer was covered by Rule 410 of the Texas Rules of Evidence,
the prosecutor proceeded to query Kent Whitaker about the proffer as though Kent Whitaker had
opened the door to this issue.
Q. (Mr. Felcman) So, the remorse or repentance that my office received was
-- let me ask you this: Did the Defendant prepare that, or did one of Dan
Cogdell's partners prepare that?
A. (Kent Whitaker) I don't even think it was a partner. I found out much
later -- in my visit with you, what, six weeks ago, that was at the time I
found out that Bart had not written the proffer, and that you were offended
by the tone of it, and that was when I knew that Jimmy -- I can't think of his
last name -- anyway, one of Dan's junior assistants, I'd heard had written
that up.
Q. There was no legal repentance, there was nothing. There was legal
maneuvering on your son's part. Am I correct on that?
A. What?
Q. He -- he repented to you, but he didn't put his neck on the line about this
case, correct?
A. As I understand it, it would have been -- Dan would not have allowed
him to.
Q. Uh-huh.
A. I think that the problem broke when Dan and you did not seem to realize
that Bart was trying to confess to this.
25 RR 106.
In post conviction proceedings, the State argued that Felcman was justified in using the
document precisely because Kent Whitaker had brought the proffer up. 3 However, the attempted
justification only compounds the misconduct. Kent Whitaker was the State’s witness, and he had
not been declared adverse. The State, therefore, manipulated its own witness into mentioning the
3
Findings of Fact and Conclusions of Law, Finding #95. The findings were drafted by the State and rubber stamped
the convicting court, a practice recently criticized by the Supreme Court in Jefferson v. Upton, 130 S.Ct. 2217
(2010). The TCCA, however, rejected several findings critical to the State’s case against habeas relief. Ex parte
Whitaker, WR-73,421-01, at 2.
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proffer so it could use the document to impeach him regarding the critical issue of Thomas
Whitaker’s remorse.
The misconduct reached its zenith during the State’s cross-examination of Thomas
Whitaker at the punishment phase. The State asked Thomas Whitaker, after he had been given
the opportunity to read the proffer, if he could name one fact in the proffer that would lessen his
“moral blameworthiness.”32 RR 260. Because Ardoin, acting on Felcman’s instruction, had
omitted all statements of remorse or acceptance of responsibility, the State was able to use the
proffer to great effect to create the appearance that Thomas Whitaker lacked remorse and was
merely manipulating the legal system to his advantage.
Q. You also mentioned something about a proffered statement. Remember
that?
A. I -- yes, sir.
MR. FELCMAN: May I approach him, Judge?
THE COURT: You may.
Q. (BY MR. FELCMAN) Don't read this out loud to the jury. Do not read it
out loud to the jury, but read this to yourself.
A. (Reading.)
Q. Is that true?
A. I did not write that.
Q. You didn't write it?
A. No. I -- I wanted to write the proffer. That was some confusion between
me and Mr. Cogdell at the time when initially -- I guess it was your office
that suggested that if we wrote the proffer, we could all end this. It was my
impression that I would write this admission of guilt.
Q. It wasn't my suggestion.
A. I'm sorry?
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Q. Your father poured his heart out to me, and I saw no remorse on your
part.
A. I didn't actually write that. The one that I wrote was in my cell, and it did
have remorse. It was really how I felt at the time, and I didn't -- I was under
the impression that I was going to be giving that copy to Mr. Cogdell, and
then I find out -- I guess I didn't see him for a few weeks. I found out the
next time that I talked to him that a proffer had been rejected. I was very
confused, because it was my understanding that I would be writing it
myself.
Q. The proffer that presented -- that you didn't even have anything to do
with. You understand how insulting that is to somebody that has to listen to
the father plea, and I see no remorse on the Defendant?
A. Yes, extremely insulting. I knew it would be, if it had been done that
way. I wouldn't have agreed to that at all. I was very upset about that.
32 RR 258.
In sum, the prosecutor manipulated Mr. Whitaker’s attorneys into providing a proffer
under TRE 410 that, at the State’s urging, was stripped of expressions of remorse or acceptance
of responsibility. The State then baited it own witness, Kent Whitaker, into mentioning the
proffer and used the ruse of “opening the door” to severely impeach the punishment phase
defense that depended entirely on these two witnesses.
1.
The State Court’s Factual Findings Were Clearly Erroneous.
The convicting court recommended denying relief on Thomas Whitaker’s prosecutorial
misconduct claim based on the following findings of fact and conclusions of law. 4
Findings of Fact
80.
Applicant provides no physical proof of a plea offer,
such as an offer letter from First Assistant Felcman, which the
Court finds there was not.
4
The findings connected to the issue of prosecutorial misconduct also include findings that the prosecutors, Felcman
and Strange, were credible witnesses. Findings at 74-79.
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81.
Applicant did not attach a copy of the proffer as evidence
in support of his grounds for relief.
82.
Based on the credible affidavit of First Assistant Felcman,
the statements in the proffer did not match the evidence of the
crime.
83.
Applicant fails to prove by a preponderance of the
evidence that First Assistant Felcman offered to remove the
death penalty as a possible option if Applicant were to tender a
detailed proffer of his involvement with the offenses and avoid
statements of remorse and contrition.
84.
Even if such an offer had been made, Applicant admits that
he did not write or participate in writing the proffer that was
tendered to the prosecution [App-Ex 5, RR-31 at 257-58].
85.
Even if such an offer had been made, Applicant did not
perform his part of the alleged Bargain.
86.
Based on the credible affidavit of ADA Strange, trial
counsel, Randy McDonald, first broached the subject of a plea
agreement for life sentences after the prosecution announced it
would seek the death penalty.
87.
Based on the credible affidavit of First Assistant Fred
Felcman, the State determined the death penalty was warranted
solely on the basis of Applicant's actions and the circumstances of
the case and never offered a plea agreement for life sentences.
88
Based on the credible affidavit of First Assistant Fred
Felcman, the State never took the death penalty off the table.
89
Applicant failed to prove by a preponderance of the
evidence his allegations of prosecutorial misconduct for failing to
negotiate in good faith.
Conclusions of Law
18.
Applicant fails to prove by a preponderance of the
evidence that First Assistant Felcman offered to remove the
death penalty as a possible option if Applicant were to tender a
detailed proffer of his involvement with the offenses and avoid
statements of remorse and contrition.
10
19.
Even if such an offer had been made, Applicant admits that
he did not write or participate in writing the proffer that was
tendered to the prosecution [App-Ex 5, RR-31 at 257-58].
Applicant thus failed to prove by a preponderance of the evidence
his allegations of prosecutorial misconduct for failing to negotiate
in good faith.
20.
As Applicant relies on a non-existent plea bargain offer,
any alleged due process violation arising from the non-existent
offer is indisputably meritless. See, e.g., Geiger v Jowers, 404 F 3d
371, 374 (5th Cir. 2005) (alleged due process violation complaint
is indisputably meritless because inmate has no federally protected
liberty interest in having his grievances resolved to his satisfaction)
21.
Applicant fails to prove by a preponderance of the evidence
that he suffered prejudice from a non-existent plea bargain offer
The TCCA agreed with the trial court’s recommendation and denied relief. However, the
TCCA did not adopt all the trial court’s specific findings and conclusions. Instead, the TCCA
expressly stated that it was not adopting findings of fact 80 and 83. Ex Parte Whitaker, NO.
WR-73,421-01 (Tex. Crim. App., June 20, 2010). The TCCA also expressly stated that is was
not adopting conclusions of law 18, which repeats finding 83 verbatim. The TCCA rejected
these findings and conclusions even though the lead prosecutor signed an affidavit that plainly
states that he “never told” Defense counsel that “if the defendant confessed, the District Attorney
would not seek the death penalty.” Exh. ‘C’, at 2.
a.
The Evidence Clearly and Convincingly Shows that the Proffer at
Issue was Provided to the State in the Course of Plea Negotiations.
At trial, Felcman examined Kent Whitaker and Thomas Whitaker regarding the proffer
that Thomas Whitaker’s former attorneys, Cogdell and Ardoin, drafted and gave to the State.
Felcman referred to the document on the record as a proffer. See, 25 RR 106 (quoted above).
Felcman’s statement that “the proffer was absolutely inadmissible, and I could not have used it
for any purposes,” Id., at 105, obviously proves Felcman knew that the document had been
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submitted pursuant to Rule 410 of the Texas Rules of Evidence as part of plea negotiations for a
life sentence.
Instead of controverting Thomas Whitaker’s contention that the State offered to consider
taking death off the table in exchange for a proffer, Felcman’s statements at trial, together with
his 2009 affidavit, demonstrate that plea bargaining took place, but that Felcman was not
negotiating in good faith, because he planned to use the proffer to impeach Kent and Thomas
Whitaker all along. According to Felcman’s affidavit, Felcman knew the Defense was aware
that the State could “easily established the criteria for the defendant to receive the death penalty.”
Exh. ‘C’, at 2. Before the proffer was made, Felcman says he figured that “the only avenue
available [to Thomas Whitaker] was to use any negotiations as a defense to receiving the death
penalty.” Id. As Felcman tells it, he anticipated specifically that the Defense would introduce
“the desires of Kent Whitaker that the State not seek the death penalty” and “from that, the offer
by the defendant to plead to life.” Id. However, it was Felcman that made this forecast come
true.
Kent Whitaker was the first witness whom the State called.
Felcman then elicited
testimony about the proffer during guilt innocence through his direct examination. 25 RR at
105-106.
b.
Findings Adopted by the TCCA Contradict the Determination That a
Life Sentence Was Never Offered.
In his 2009, affidavit Felcman denies that he said “he would consider removing death …
only if [the defense] submitted a “proffer” of evidence.” Exh. ‘C’, at 4. According to Felcman,
Cogdell and Ardoin approached him in a Best Buy, that “Dan said something about how
despicable the actions of the defendant were but that he believed the defendant to have some
remorse.” Id. Felcman maintains that he simply replied that his “opinion was different and that
true remorse is not negotiated but comes from within.” Id. According to Felcman, “that was the
12
entire conversation.” Id. Based on this allegation, the State proposed that the Court find that
“First Assistant Felcman [never] offered to remove the death penalty as a possible option if
Applicant were to tender a detailed proffer of his involvement with the offenses.” However, the
TCCA expressly decided not to adopt this proposed finding.
On the crucial issue of whether Felcman offered to consider taking death off the table
only if supplied with a proffer, Cogdell’s and Ardoin’s adamant affirmation, therefore, stand
unrebutted by the State’s specific denial.
Review of the evidence should therefore be to
determine if the affidavits of Cogdell and Strange clearly and convincingly demonstrate the
unreasonableness of a general denial that Felcman offered to consider a life sentence in return for
a proffer of evidence stripped of expression of remorse. It clearly does. Both attorneys provide
sworn statements, and describe in detail the circumstances under which Felcman elicited the
proffer and the conditions he imposed on its contents. Exh. ‘A’, at 3; Exh. ‘J’, at 2-3. The State
does not question their reputation for honesty. At trial, the State produced the proffer that the
Cogdell gave Felcman, and the contents of this document corroborate their claim that they
drafted it as a factual account rather than repentant one.
c.
The Finding That Thomas Whitaker Did Not Keep His End of the
Plea Bargain is Falsified by the Record.
The TCCA’s justification of Felcman’s use of the proffer on the ground that Thomas
Whitaker did not keep up his end of the bargain was also unreasonable. The conclusion that
Thomas Whitaker breached the plea agreement appears to be based on a predicate finding that
the statements in the proffer conflicted with the evidence of the crime. However, the evidence
against this is overwhelming.
First, the claim that the proffer was untruthful is based on a perfunctory statement that
Felcman attributes to his investigator, Marshal Slot. The incompetence of this evidence is
13
manifest. Felcman says first, that his investigator, Marshall Slot “told me the facts were wrong
in it.” Id., at 3. This is hearsay unsupported by any indicia of reliability. Later on he says simply
“that Dan or Jimmy” sent him a letter with “facts that were wrong.” Id., at 10. However,
Felcman does not back up the conclusory allegation by identifying a single discrepancy between
the State’s evidence and the proffer. He does not say he confirmed Slot’s view independently.
Furthermore, Felcman never says that Slot’s detection of factual inaccuracies was the reason for
rejecting the proffer. To the contrary, Felcman insists that “the proffered statement given to me
was of absolutely no legal detriment to the defendant.” Id., at 4. This flatly contradicts the
TCCA’s finding that the document given to the District Attorney’s office contained untruthful
statements, let alone knowing material falsehoods. Had the proffer contained anything of the
sort, it would have been a crime to submit it, and Felcman, a long time Assistant District
Attorney, would have recognized and used that fact against Mr. Whitaker. 5
Second, if Felcman had found discrepancies of any importance in the proffered
statement, he would have impeached Mr. Whitaker with the deviations from the evidence.
Felcman’s primary aim was to demonstrate that Thomas Whitaker could not be trusted, that he
could manipulate even seasoned attorneys, and, therefore, that the jury should find that his
remorse was feigned. A line of questioning demonstrating that Thomas Whitaker had used his
attorneys to feed false information to the State obviously would have advanced the prosecution’s
argument. However, Felcman did not identify a single factual inaccuracy at trial in 2007 or in
the affidavit he submitted in 2009.
5
Under Texas Code of Criminal Procedure § 37.08 (a)(2) it is a class B misdemeanor to make “a false statement
material to a criminal investigation” to “any employee of a law enforcement agency.” In Texas, assistant district
attorneys are employees of a law enforcement agency. The District Attorney’s Office is a law enforcement agency
under TCCP §2.12 (defining peace officer to include investigators employed by a District Attorney) and TCCP
§59.01 (defining law enforcement agency as a government division employing peace officers).
14
Third, after the encounter with Felcman at a Best Buy department store, Ardoin took
down a factual account from Mr. Whitaker. Exh. ‘B’, at 2. Cogdell confirms that Ardoin met
with Thomas Whitaker immediately after the conference to produce a factual account in
accordance with Felcman’s directions. Exh. ‘A’, at 3. By this time, both the Defense and the
State were aware of the evidence that law enforcement had developed in the case. Cogdell and
Ardoin would not and did not allow their client to make statements in a proffer that conflicted
with what was known about the case. Indeed, factual discrepancies are not evident; the proffer
Ardoin drafted appears completely consistent with the facts developed by the State. See, Exh.
‘J.1’ (Jan. 5, 2006, Proffer). The intimation that Thomas Whitaker did not keep up his end of the
plea bargain because he fabricated some portion of the factual account of the crime is not just
false, it is a concoction. It does not deserve deference.
d.
The Finding That Thomas Whitaker Did Not Participate in Plea
Negotiations is Also Unreasonable.
Cogdell and Ardoin’s affidavits both prove that the factual account of the crime
contained in the proffer came straight from Thomas Whitaker. Exhs. ‘A’ and ‘B’. Thomas
Whitaker’s testimony at trial that he did not write the proffer or review it before Cogdell
submitted it does not negate his participation in the plea bargaining process. It would be one
thing if Thomas Whitaker were unaware of Cogdell’s and Ardoin’s efforts to arrange a deal or
had objected to them. However, Thomas Whitaker did not testify that he had not authorized plea
bargaining. To the contrary, his testimony acknowledges that he was actively engaged in
assisting his attorneys’ endeavors to arrange a deal for a life sentence. 31 RR 226. Felcman’s
own 2009 affidavit also confirms that Thomas Whitaker authorized and participated in plea
negotiations. Felcman’s reveals that the State secretly recorded a conversation between Thomas
Whitaker and Kent Whitaker. Exh. ‘C’, at 3. The recording, according to Felcman’s affidavit,
15
reflected Thomas’ understanding that his attorneys were engaged in plea negotiations and had
been informed of the objectives. Id.
In addition to being demonstrably false, the factual findings that Thomas Whitaker did
not keep up his end of the plea bargain and the allegation he did not participate in the plea
bargain seem to be irrelevant to the TCCA’s disposition of Thomas Whitaker’s due process
claim. The finding on which the TCCA’s conclusion of law regarding due process squarely rests
intermixed with the 20th conclusion of law.
According to this conclusion, Felcman’s
procurement and use of the proffer did not offend due process because the due process allegation
“relies on a non-existent plea bargain offer.” See, Conclusion of Law # 20.
Because the TCCA rejected the finding and conclusion that there is no “physical proof of
a plea offer” and rejected the finding that Thomas Whitaker “fail[ed] to prove by a
preponderance of the evidence that First Assistant Felcman offered to remove the death penalty
as a possible option if Applicant were to tender a detailed proffer of his involvement with the
offenses and avoid statements of remorse and contrition,” the only way to square the finding that
the offer of a plea was “non-existent” is by reference to Felcman’s representation that he did not
say that the District Attorney, John Healey, would offer a life sentence if Thomas Whitaker
confessed. Exh. ‘C’, at 3-4. However, Felcman does not say he lacked authority to enter into
plea negotiations, and his 2009 affidavit demonstrates that he was doing precisely that.
Felcman’s co-counsel, Assistant District Attorney Jeff Strange’s 2009 affidavit also
shows that the State engaged in plea negotiations through the time the proffer was tendered and
afterwards. Exh. ‘J’, at 3. Strange says he was part of two formal conferences between Cogdell
and Healey, but Healey did not offer to forego seeking the death penalty at either meeting. Id., at
3. Nonetheless, he concedes that the offer of a plea to a life sentence was discussed, albeit, in his
16
view, “never seriously.” Id. Strange acknowledges that Cogdell’s goal was to get us to take the
death penalty "off the table" so he could then start negotiating for a period of years on a possible
murder plea.” Id. Strange also corroborates Cogdell’s post-conviction assertion that, after the
proffer, Cogdell responded to inducements to continue negotiating by arranging for Bo Bartlett
and Kent Whitaker to meet with the prosecutor to express the Bartlett and Whitaker families’
desires for a life sentence. According to Strange, Felcman and he met with Kent Whitaker and
Bo Bartlett on at least a couple of occasions while the question of punishment was still left open.
As Strange says, it was not until a series of the meetings with Kent Whitaker and Bo Bartlett
concluded that “we ultimately decided to seek the death penalty.” Id. Felcman’s affidavit in fact
shows that Healy did not foreclose the possibility of a plea to life sentence until close to the time
of trial. According to Felcman,
All conversations with Kent Whitaker and Bo Bartlett that Jeff, Marshall, Billy
and I had were relayed to District Attorney John Healey. Mr. Healey and Jeff also
met with Mr. Bartlett without me being present. After all conversations, Mr.
Healey determined that the evidence warranted the seeking of the death penalty.
We then went to trial.
Exh. ‘C’, at 5.
e.
Felcman’s Plan to Use the Proffer to Undercut Thomas Whitaker’s
Punishment Phase Defense is Evident From the Record.
Felcman’s questioning of Kent Whitaker is inexplicable except as part of a scheme to
capitalize on the elimination of contrition from the proffer as a way to defuse what Felcman
believed was Mr. Whitaker’s lone defense to the death penalty, which was to show a willingness
to except remorse by pleading guilty. Id., at 3. In order to realize this goal, Felcman, in what
may be a first, impeaches a credible witness’s guilt-phase testimony that the defendant confessed
to a capital crime:
17
A.
I hadn't seen my son in 15 months. He walked in, and there was the
bulletproof glass separating us, and he looked down, and I think I told
him that I missed him and he looked good. And he said, "Dad, I'm so
sorry. I'm sorry for everything. I'm going to do everything in my power
to make this as easy and painless as possible for everyone." And it was
at that moment that I realized that he was –
Q.
Guilty?
A.
-- he was guilty and willing to confess.
Q.
There was no confession, though, at any time, was there?
A.
There was no confession. There was a proffer offered to the District
Attorney's office a year and, what, three or four months ago.
25 RR 105. This shows he had one pre-conceived purpose for soliciting testimony about the
proffer from his witness, which was to portray Thomas Whitaker as remorseless.
The interrogation of Kent Whitaker (25 RR 105-106) regarding the lack of remorse
expressed in the proffer was itself irrelevant to guilt innocence. Once again, the only purpose for
this line of questioning was to set up the prosecution’s punishment phase theme that Thomas
Whitaker was manipulative and cold hearted. Felcman’s use of Kent Whitaker at guilt innocence
to draw a contrast between the father’s grief and the lack of remorse expressed in the proffer
compounds with vindictiveness the bad faith inherent in the State’s calculated misuse of the
proffer. See, id., at 106.
1.
The TCCA Unreasonably Failed to Extend Santobello.
A state-court decision involves an unreasonable application of Supreme Court precedent
if the state court either “unreasonably extends a legal principle” from Supreme Court precedent
“to a new context where it should not apply or unreasonably refuses to extend that principle to a
new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000); Ramdass v.
Angelone, 530 U.S. 156, 166 (2000) (“A state determination may be set aside under this standard
18
if, under clearly established federal law, the state court was unreasonable in refusing to extend
the governing legal principle to a context in which the principle should have controlled.”). In
Williams v. Spitzer, 246 F.Supp.2d 368 (S.D.N.Y. 2003), the District Court found that it was
unreasonable not to extend Santobello into a context situated farther from the facts of the
Supreme Court’s decision than is Thomas Whitaker’s case. In Williams, 246 F.Supp.2d at 371,
the defendant pled to murder charges in federal court. Police detectives promised that if the
defendant continued cooperating against a gang he formerly belonged to, the State would agree
to a sentence in his State case that would run concurrently and terminate with his federal
sentence. Id., at 372. At sentencing in State court, however, the District Attorney successfully
sought a 15 year sentence exceeding the federal punishment. Id., at 373. The federal district
court granted habeas relief upon finding no meaningful distinction from Santobello with regard
to the due process claims.
Cogdell and Ardoin’s affidavits establish that in order to obtain a proffer from Thomas
Whitaker, Felcman promised to take death off the table. As in Williams, the contention that this
promise was off the record and not made by the elected District Attorney himself is immaterial.
Clearly, the TCCA’s refusal to extend Santobello into this context justifies setting aside its
decision and granting relief.
2.
The TCCA Unreasonably Failed to Recognize That Using the Proffer
in the State’s Case in Chief and to Impeach Mr. Whitaker Was
Repugnant to Basic Principles of Fundamental Fairness.
The contractual principles underlying the plea bargaining process are of course
“supplemented with a concern that the bargaining process not violate the defendant's rights to
fundamental fairness under the due process clause.” See, United States v. Rourke, 74 F.3d 802,
805 (7th Cir.) (quoting Ingram, 979 F.2d at 1184), cert. denied, 517 U.S. 1215 (1996). Thomas
19
Whitaker had every reason to expect that the District Attorney would treat the information he
provided as part of plea bargaining. Defendants are justified in believing that “prosecutors will
be faithful to their duty.” Newton v. Rumery, 480 U.S. 386, 397 (1987) (plurality opinion). The
use of evidence obtained through plea negotiations, therefore, is obviously repugnant to due
process. See, United States v. Sikora, 635 F.2d 1175, 1178 (6th Cir. 1980). The defendant must
waive rights under Rule 410 before the State can use proffered testimony even if the purpose is
just for impeachment. United States v. Mezzanatto, 513 U.S. 196 (1995). Even so, waiver is
freighted with serious due process concerns. See, United States v. Gomez, 210 F.Supp.2d 465,
475 (S.D.N.Y. 2002).
The legal conclusions adopted by the TCCA are colored by the false premise that there
was no plea bargain offer. Because of this error, the rule of decision that the TCCA relied upon
predictably conflicted squarely with Supreme Court precedents. The TCCA relies on Geiger v
Jowers, 404 F 3d 371, 374 (5th Cir. 2005), for due process principles. Geiger complained about
the adequacy of the prison’s inquiry into the conduct of the mail room and security staff. The
Court found that Geiger did not have a cognizable interest in being free from the conduct he
complained about. Because there was no substantive due process interest at stake, Geiger was
not entitled to procedural due process. Likewise, the TCCA decided that because the State did
not ultimately make an offer of a life sentence, Thomas Whitaker did not have an interest in the
way plea negotiations were carried out. However, the TCCA’s analogous reasoning sprays wide
of the target. First, Thomas Whitaker is not raising a procedural due process claim, but a
substantive claim that arises when the State represents that it is procuring information supplied
by the Defendant as part of a plea bargaining process. Under these circumstances, the Defendant
20
has a substantive interest in having the State treat the documents it receives as inadmissible,
rather than misusing the process to secure information for undercutting the defense.
3.
Harmless Error Analysis is Not Necessary.
In Santobello, 404 U.S. at 263, the Supreme Court indicated that reviewing courts “need
not reach the question whether the sentencing judge would or would not have been influenced
had he known all the details of the negotiations for the plea.” Instead, the Court held that “the
interests of justice and appropriate recognition of the duties of the prosecution in relation to
promises made in the negotiation of pleas of guilty will be best served by remanding the case to
the state courts for further consideration.” Id. Instead of analyzing the harmfulness of the error,
this Court should grant relief so that the trial court, as happened in Santobello, id., may
determine whether the more appropriate course of action is to enforce the promise not to seek the
death penalty that the State made in exchange for Thomas Whitaker’s proffer.
4.
Because the TCCA Applied the Wrong Constitutional Standard, This
Court, if it Assesses Harm, Should Do So De Novo.
Under Brecht, supra, and O'Neal v. McAninch, 513 U.S. 432 (1995), an error requires
relief if it had a “substantial or injurious effect or influence in determining the jury's verdict.”
Brecht, 507 U.S. at 622 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). When
the reviewing court has “grave doubt” as to the harmlessness of an error, the writ should issue.
O'Neal, 513 U.S. at 435.
However, the TCCA addressed the issue of harm in a single
proposition, in which it found that “Applicant fails to prove by a preponderance of the evidence
that he suffered prejudice from a non-existent plea bargain offer.” Conclusion of Law #20
(emphasis added). Because the analysis of harm in post conviction proceeding is governed by
Brecht v. Abrahamson, 507 U.S. 619 (1993), the TCCA’s decision is contrary to, or involves an
unreasonable application of, Supreme Court law.
21
Habeas petitioners do not shoulder the burden of proving that constitutional error caused
substantial harm. See, Soffar v. Johnson, 237 F.3d 411, 460 (5th Cir. 2000) (explaining that “the
Supreme Court rejected the notion that under Brecht, the habeas petitioner must bear the burden
of establishing whether the error was prejudicial”). Furthermore, prejudice and materiality are
the same, see, Kyles v. Whitley, 514 U.S. 419 (1995), and the Supreme Court has explained that
“the constitutional standard of materiality,” and therefore prejudice, “must impose a higher
burden on the defendant” than the standard for harm under Brecht. See, United States v. Agurs,
427 U.S. 97, 112 (1976).
The harm caused by the State’s misuse of the plea bargaining process to obtain the
proffer Ardoin drafted is reflected in the State’s case and in Felcman’s 2009 affidavit. Felcman
realized that an expression of remorse was a viable mitigation defense. He therefore went to
lengths to undermine the defense by procuring a factual proffer, eliciting testimony from Kent
Whitaker in order to justify questioning Kent and Thomas about the proffer (while
simultaneously announcing that it was inadmissible), and then using the proffer to draw a
devastating comparison between the sorrowful yet forgiving father, and an allegedly still
remorseless, manipulative son. 31 RR 257 (“The proffer that presented -- that you didn't even
have anything to do with. You understand how insulting that is to somebody that has to listen to
the father plea, and I see no remorse on the Defendant?”). In closing, the State focused on the
proffer as proof that Thomas Whitaker was incapable of taking responsibility, and instead
blamed others:
This is manipulation, this is gamesmanship, what you've seen during the entire
course of this trial, worthy of Bart Whitaker. Wasn't it amazing that he started
blaming his attorneys on the stand yesterday? He was talking about the proffer.
"Well, that was my attorney's fault. I didn't want it done that way." And the
plea? "Well, I didn't want to do that. I didn't agree with it, but I just followed my
lawyer's advice." He did not take an iota of responsibility.
22
Id., at 31.
In evaluating the harm caused by the misuse of the proffer, evidence that the State
intentionally mislead the jury should be taken into consideration. See, e.g., United States v.
Gerard, 491 F.2d 1300, 1302 (9th Cir. 1974); United States v. Esposito, 523 F.2d 242, 249 (7th
Cir. 1974). Felcman’s affidavit shows he knew that Cogdell was in complete charge of the plea
negotiations and that Thomas Whitaker was not pulling his strings. Felcman’s co-counsel shows
that Felcman realized right away that the proffer had been drafted by Thomas Whitaker’s
attorneys. According to Strange, “reading the proffer it was clear that it had been prepared by
Mr. Cogdell's office and did not reflect the words of Bart Whitaker.” Exh. ‘J’, at 4. Strange’s
affidavit also shows he was perfectly familiar with what a proffer was. On the other hand,
Felcman (a veteran, career prosecutor) professed to have never of heard of a “proffered
statement” (Exh. ‘C’, at 4), said he “did not know for certain” that Cogdell’s office had drafted
the document until trial, id., and impeached Thomas Whitaker on the specious ground that he had
engineered the proffer in order to avoid taking responsibility. 31 RR 257-58. The misuse of the
proffer to mislead the jury clearly caused substantial harm by vitiating entirely the only defense
to the death penalty sponsored at trial. Habeas relief is therefore warranted.
CLAIM TWO
TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE
Strickland v. Washington, 466 U.S. 668 (1984), set forth the legal principles that govern
ineffective assistance of counsel claims. A defendant must show that counsel's performance was
deficient, and that the deficiency prejudiced the defense. Id., at 687. To establish deficient
performance, he must demonstrate that counsel's representation "fell below an objective standard
of reasonableness." Id., at 688.
The Supreme Court has “declined to articulate specific
23
guidelines for appropriate attorney conduct.” Wiggins v. Smith, 539 U.S. 510, 521 (2003).
Instead, the Court has “emphasized that ‘[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.’” Id. (quoting Strickland, 466 U.S.
at 688). After demonstrating that counsel performed deficiently, a defendant must show that
counsel’s failures prejudiced his defense. Strickland, 466 U.S. at 692. To establish prejudice, a
“defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id., at 694.
In assessing
prejudice, the reviewing court reweighs the evidence in aggravation against the totality of
available mitigating evidence. Wiggins, 539 U.S. at 534. The totality of the evidence includes
“both that adduced at trial, and the evidence adduced in the habeas proceeding[s].” Williams,
529 U.S. at 397-398 (emphasis added).
Straightforward application of seminal Supreme Court decisions establishes that Thomas
Whitaker’s attorneys’ performance did not conform to reasonable professional norms. As in
Strickland and Wiggins, the deficient performance allegation in this case “stems from counsel's
decision to limit the scope of their investigation into potential mitigating evidence.” Wiggins,
539 U.S. at 421 (citing Strickland, 466 U.S. at 673). The Supreme Court cautioned that, in
assessing counsel’s performance, strategic decisions of counsel must be afforded deference.
Strickland, 466 U.S. at 681. However, the Court also stressed that deference is owed only if
counsel’s decision were based upon a reasonable investigation. Id., at 691.
Strickland’s prejudice prong may be satisfied by claims taken individually. However,
even if the harm caused by any single given claim is not material, the cumulative harm of
multiple errors may require relief and must be considered. Kubat v. Thieret, 867 F.2d 351, 370
24
(7th Cir. 1989); Gonzalez v. McKune, 247 F.3d 1066 (10th Cir. 2001) (“Faced with established
errors at trial, a court must consider the cumulative impact of those errors in light of the totality
of the evidence properly presented to the jury.”). In Thomas Whitaker’s case, relief is warranted
on claims taken individually. When the cumulative effect of counsel’s errors are evaluated,
habeas relief is unquestionably required.
I.
TRIAL COUNSEL’S FAILURE TO INVESTIGATE A MITIGATION DEFENSE
DEPRIVED THOMAS WHITAKER OF HIS SIXTH AMENDMENT RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL.
A.
Trial Counsel’s Failure to Investigate and Sponsor a Mitigation Defense Was
Deficient.
In a capital case, “the defense team should contain at least one member qualified by
training and experience to screen individuals for the presence of mental or psychological
disorders or impairments.” See, State Bar of Texas Guideline 3.1 (A)(2); and, see, ABA
Guideline 4.1 (A)(2). “Attorneys have an obligation to explore all readily available sources of
evidence that might benefit their client . . .,” and counsel who has access to defendant's medical
records “ha[ve] a professional obligation to do an in-depth investigation into their client's deepseated psychiatric problems.” Brown v. Sternes, 304 F.3d 677, 693-698 (7th Cir. 2002).
Trial counsel admits that he “deliberately determined” not to investigate mitigating
evidence of any sort, including evidence of mental illness and emotional problems. Exh. ‘E’.
Trial counsel failed to retain a mental health expert, and counsel failed to obtain necessary
mental health records and reports, including the 2005 report of Dr. Brown. Trial counsel
received a copy of Dr. O’Rourke’s 1997 report; however, he failed to consult with Dr. O’Rourke
regarding her findings, and failed to consult with another expert who could explain the
significance of Dr. O’Rourke’s findings.
25
Trial counsel compounded his failure to investigate by attempting to evaluate Thomas
Whitaker’s mental health unassisted by a mental health professional. See, Exh. ‘A’, at 10. As a
result, trial counsel failed to comprehend that Thomas Whitaker suffered from an Axis I mental
illness that included delusional thinking with serious symptoms of emotional disturbance.
Instead, trial counsel erroneously attributed personality disorders – antisocial personality
disorder and narcissistic disorder – to Thomas Whitaker, which he did not have.
Trial counsel was not strapped by time or by limited resources. Trial counsel concedes
that, in fact, Thomas Whitaker’s father, Kent, would have funded a psychological investigation.
Exh. ‘E’. Kent Whitaker confirms that he was anxious to have his son evaluated by a mental
health professional and would have provided additional funding. Exh. ‘D’.
B.
Trial Counsel Did Not Have a Strategic Reason for Ignoring Mitigating
Psychological Evidence.
In post conviction proceedings, trial counsel justified his failure to develop a mitigation
defense based on psychological evidence because he felt a preliminary inquiry indicated that
such punishment phase defense would be fruitless or inadvisable. According to trial counsel,
[a]fter having a discussion with Dr. O'Rourke, who also was the psychologist
for Kent Whitaker, I made the determination that I would not be pursuing the
third issue in the capital murder theme of mitigation and that any testimony
from a psychologist would be, not only harmful, but would allow the State to
bring forth evidence attempting to show that Bart Whitaker did not have a
conscious, was narcissistic, and therefore, could not be remorseful for the acts
that he committed. As a trial strategy, early on, after my conversations with
Bart and my understanding of the other records regarding his psychological
state, I made a deliberate determination that I would not be pursuing the
mitigation issue in this case.
Exh. ‘E’.
However, this underscores the trial counsel’s deficient performance.
26
1.
Trial Counsel’s Failure to Investigate Was the Inexcusable Product of
Not Knowing Basic Legal Differences Between Consulting and
Testifying Experts.
In Soria v. State, 933 S.W.2d 46, 56 (Tex. Crim. App. 1996), the TCCA held that “when
the defendant initiates a psychiatric examination and based thereon presents psychiatric
testimony on the issue of future dangerousness, the trial court may compel an examination of
appellant by an expert of the State's or court's choosing and the State may present rebuttal
testimony of that expert based upon his examination of the defendant.” In Lagrone v. State, 942
S.W.2d 602 (Tex.Crim.App. 1997), the TCCA expanded Soria, holding that if a defendant
expresses an intent to challenge the future dangerousness special issue with psychological
testimony, the trial court can order that the defendant submit to an examination by an expert
selected by the State. However, Lagrone also held that if the defense ultimately decides not to
sponsor psychological testimony, the State cannot put on adverse psychological findings.
Instead, it is limited to rebutting the defense’s theory. See, Lagrone, 942 S.W.2d 609–612
(defendant's presentation of psychiatric testimony on future-dangerousness is a “limited” waiver
of Fifth Amendment rights entitling State to compel defendant to an examination by State's
psychiatric expert for rebuttal purposes “provided, however, that the rebuttal testimony is limited
to the issues raised by the defense expert”).
Lagrone’s holdings shows that trial counsel’s belief that by retaining a mental health
expert he would open the door to compulsory psychological examinations by State experts, and
to the inevitable use of adverse findings at trial, rests on a fundamental misunderstanding of
firmly established law. Furthermore, since Kent Whitaker was funding the case, trial counsel did
not have to file a motion in open court seeking the appointment of an expert, which would reveal
his intention to explore a mitigation defense based on psychological testimony. Dr. Brown, in
27
fact, examined Thomas Whitaker in 2005 without the dire consequences that trial counsel feared.
However, because trial counsel failed to take rudimentary steps to gather records, he, too, was
unaware of Dr. Brown’s report.
2.
Trial Counsel’s Conclusion That a Mental Health Defense Would be
Fruitless Was Unreasonable.
On November 9, 2006, approximately 100 days before guilt-innocence began, the Fort
Bend County Clerk issued a subpoena duces tecum for Dr. O’Rourke to testify at trial and to
disclose Thomas Whitaker’s psychological records. These records included Dr. O’Rourke’s
report and analysis of his performance on the MCMI-II test. Exh. ‘I’ (Subpoena). On December
21, 2006, the State served the subpoena on Dr. O’Rourke. Id. The State provided trial counsel
with a copy of the 1997 report, Exh. ‘J’ (Affidavit of Assistant D.A., Jeff Strange), at 2, and Dr.
O’Rourke’s notes reflect that she scheduled a conference with trial counsel for January 15, 2007,
in order to discuss her testimony. Group Exh. ‘K’. At trial she confirmed that she spoke “once”
with trial counsel by phone. 31 RR 25.
Documents that Dr. O’Rourke disclosed in response to the State’s November 9, 2006,
subpoena contradict trial counsel’s post-conviction claim that he learned through his lone
conference with Dr. O’Rourke that Thomas Whitaker only suffered from anti-social and
narcissistic disorders. Dr. O’Rourke turned over copies of notes that she created in preparation
for possible interrogation by the prosecution and testimony, as a witness at trial. Dr. O’Rourke’s
pre-trial review of her 1997 psychological evaluation of Thomas Whitaker confirmed that
Thomas Whitaker did not meet criteria for having an antisocial personality disorder and it
confirmed that Thomas Whitaker did not satisfy the numerous factors on the “psychopathy check
list.” Group Exh. ‘K’. Dr. O’Rourke’s disclosures also show that in preparing to deal with
Thomas Whitaker’s prosecutors, Dr. O’Rourke consulted the DSM-IV for Children and
28
Adolescents and highlighted the following statements about diagnosing personality disorders in
youths and young adults:
• The DSM-IV criteria for personality disorders require a lifelong pattern of
experiences and features. Children (especially younger children) simply
haven't lived long enough to attain this standard.
• When personality disorder diagnoses are made in adolescents, they tend to
be unstable.
• Changing diagnostic criteria promote uncertainty in the diagnostic
process.
• In fact, as personality disorder diagnoses fall out of favor (consider the
case of passive-aggressive personality disorder), even less stability in this
diagnostic process can be assumed.
• Many teenagers and adults qualify for several personality disorders; [but]
• According to the DSM, the best validated personality disorder, Antisocial
Personality Disorder, cannot be diagnosed before the age of 18.
Group Exh. ‘K’.
The argument that Dr. O’Rourke’s 2006-07 review notes are inconsistent with her 1997
report cannot be sustained. In her 1997 report, Dr. O’Rourke warned that “further professional
observation and care are appropriate” because of the presence of an underlying mental illness
with psychotic symptoms, which lead to, and was exacerbated by, drug use. Exh. ‘F’. Dr.
O’Rourke’s recommendation made it obvious that additional investigation into Thomas
Whitaker’s psychological history and condition was necessary, rather than something trial
counsel could forego.
However, trial counsel purposely failed to investigate mitigating
psychological evidence.
Finally, in 2011, Dr. O’Rourke addressed trial counsel’s 2009 allegation that he made a
strategic decision after consulting with her. Exh. ‘L’ (2011 Affidavit of Dr. Brendan O’Rourke).
According to Dr. O’Rourke, trial counsel talked with her briefly on one occasion.
29
The
communication was too short, as she recalls, for her to explain the 1997 results. Id. However,
she definitely did not tell trial counsel that she had diagnosed Thomas Whitaker with narcissistic
disorder or antisocial disorder. Id. Dr. O’Rourke states that, instead, she would have informed
trial counsel that these diagnoses could not be made in adolescence. Id. Dr. O’Rourke would
also have informed McDonald that the results of her 1997 tests indicated that Thomas Whitaker
was suffering from an Axis I mental illness that included delusional thinking. Id.
Three things follow. First, reasonable counsel would have realized that the State had
discovered Dr. O’Rourke’s narrative discussion of Thomas Whitaker’s possible personality
disorders and that it would try to introduce findings that appeared adverse either through Dr.
O’Rourke or other witnesses, such as Lynn Ayres. Second, reasonable counsel would have
retained a mental health expert in order to counter the State’s slanting of this evidence, and
provide mitigating psychological testimony about Thomas Whitaker’s serious mental illness.
Third, the assertions made in post-conviction proceedings that trial counsel strategically decided
not to investigate a mitigation defense in order to prevent the State from discovering and
presenting harmful psychological evidence are fabricated responses to Thomas Whitaker’s state
writ.
In fact, trial counsel had no reason to believe his strategy of defending Thomas Whitaker
against the death penalty by proving he was not a future danger through the testimony of Thomas
Whitaker’s father, uncle and Thomas Whitaker, himself would prevail.
According to trial
counsel, that strategy would only succeed if the State did not know of Thomas Whitaker’s
alleged personality disorders. Exh. ‘E’.
However, the State had discovered the very
psychological evidence that trial counsel feared showed “antisocial [behavior], as well as being
without conscious or empathy for others in a narcissistic way.” Id. Furthermore, trial counsel
30
knew the state had this evidence, because the State procured Dr. O’Rourke’s files through a
subpoena and gave trial counsel a copy of it, along with a copy of the Ayres records containing
her harmful assessment.
McDonald’s efforts to exclude Dr. O’Rourke’s records (the MCMI-II results) pursuant to
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) on the ground that the MCMI-II
was not a valid test to give to the 17 year old Thomas Whitaker, although successful, do salvage
his performance. 31 RR 8-26 (Daubert hearing). In particular, the fact that Dr. O’Rourke’s
1997 results were inadmissible does not excuse trial counsel’s decision not to investigate
mitigating psychological evidence that would be admissible.
Indeed, it underscores the
deficiency of trial counsel’s decision not to investigate a psychological defense for the following
reasons.
First, trial counsel did not know before trial that the convicting court would exclude Dr.
O’Rourke’s 1997 report.
In order to counter harmful inferences and present mitigating
psychological evidence, trial counsel should have retained a mental expert in case the trial court
admitted MCMI-II. Second, if one assumes that trial counsel had good reason to believe that the
Court would exclude Dr. O’Rourke’s testimony, he still should have investigated a mitigation
defense based on psychological evidence.
Had trial counsel investigated and developed
admissible testimony, such as Dr. Brown’s or Dr. Harrison’s findings and opinions, he would
have been able to present expert testimony that the State could not rebut with the MCMI-II that
Dr. O’Rourke administered in 1997. Finally, trial counsel allowed the State to sponsor damaging
psychological testimony through Ayres, whom the State clearly considered to be a key
punishment phase witness. 31 RR **. Trial counsel also allows prosecutors to stress the adverse
opinion of this educational counselor, the “disturbing interview” that Ayres said she conducted
31
with Thomas Whitaker and her report that Thomas Whitaker was "narcissistic" and "he looked at
people as tools." 32 RR, at 72.
Worse trial counsel, himself, legitimized Ayres’ conclusion that Thomas Whitaker was
antisocial. Instead of challenging the qualifications of this educational counselor to render a
psychological opinion pursuant to Daubert
and Texas Rule of Evidence 702, the record
indicates that trial counsel consciously decided to allow the jury to hear Ayers’ damaging
testimony and also the State’s harmful summary of it at the close of the case. Amazingly, trial
counsel concedes that he intentionally allowed the State to introduce evidence damaging to his
client in order to facilitate the jury’s punishment phase decisions. Speaking to the jury, trial
counsel states that “I've actually tried to defend this case more on a level of a human being,
as opposed to lawyering, allowed all the evidence before you, allowed everything before you
so you could make this awful, awful judgment that you have to make.” 31 RR 65. In light
of the fact that trial counsel purposefully let jurors hear the very evidence of personality
disorders that trial counsel maintains post-conviction that he angled to keep out of evidence, the
supposed strategy of excluding Dr. O’Rourke’s 1997 tests results was no strategy at all. Instead,
it is a demonstrably false excuse.
C.
Trial Counsel’s Deficient Performance Was Prejudicial.
1.
The Findings of Dr. Kit Harrison Mitigate Against the Death Penalty.
During state habeas proceedings, Dr. Kit Harrison administered a battery of
psychological tests and conducted extensive interviews of Thomas Whitaker, his former fiancé
and his father. Exh. ‘H’, at 1. Dr. Harrison’s examination revealed several clinical problems
dating back to early childhood, which had not been addressed by counselors or other mental
health professionals. According to Dr. Harrison,
32
There were many remarkable findings relative to the forensic history and
evaluation of this young man. Most prominent in the clinical picture was a
tormented irrational self-concept and personal self-identity dating back to
early childhood. Likely demonstrating early manifestations of social
impairments most resembling several features suggestive of early
Asperger’s Disorder.
Id., at 2.
As had Dr. O’Rourke and Dr. Brown, Dr. Harrison also remarked on Thomas Whitaker’s
losing contact with reality. Dr. Harrison found that while still in high school, Thomas Whitaker
became “increasingly out of touch with reality, paranoid, and delusional”. Id., at 3. Thomas
Whitaker, according to Dr. Harrison, was alienated from a suburban culture that he believed was
self-indulgent. Id. Dr. Harrison remarked that Thomas Whitaker “experienced increasing inner
turmoil and upheaval, self-loathing, and increasingly desperate attempts to appear normal.” Id.,
at 3.
Dr. Harrison also corroborated Dr. Brown’s findings that after high school Thomas
Whitaker’s mental condition deteriorated further.
Dr. Harrison’s interview of Thomas
Whitaker’s fiancé resulted in the finding that Thomas Whitaker “became more reclusive, bizarre,
and reckless.” Id. Dr. Harrison calculated that at the time of the offense, Thomas Whitaker’s
“global assessment of functioning” (“GAF”) score was 25 out of 100. Id., at 6. At this level (2130), Thomas Whitaker’s behavior was “considerably influenced by delusions or hallucinations
OR serious impairment, in communication or judgment (e.g., sometimes incoherent, acts grossly
inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in
bed all day, no job, home, or friends).” See, Diagnostic and Statistical Manual of Mental
Disorders IV, at 34.
33
a.
Dr. Harrison’s Findings Refute the State’s Argument That Mr.
Whitaker Manipulated and Deceived Others Because He Felt
Superior.
Dr. Harrison’s forensic analysis is diametrically opposed to the State’s penalty phase
evidence, and to trial counsel’s post-trial justifications for “deliberately determin[ing]” not to put
on a mitigation defense.
The prosecution sponsored evidence that Thomas Whitaker
manipulated and deceived Dr. O’Rourke into sending misleading recommendations to Clement
High School in an effort to get Thomas Whitaker re-instated. Id., at 31 RR. Through Thomas
Whitaker’s educational counselor, Lynne Ayres, the State sponsored evidence that Thomas
Whitaker was grandiose, deceptive, and narcissistic. Ayres testified that Thomas Whitaker
bragged that he, like Atlas, could carry the entire world on his shoulder and could manipulate his
teachers into giving him whatever grade he wanted. 31 RR, at 74. The State emphasized that
Ayres found the interview she conducted with Thomas Whitaker in 2002 very disturbing, Id. at
49, because, in her view, Thomas Whitaker considered himself as a criminal and thought like
one. Id., at 49-50. Finally, through Ayres, the State introduced testimony that Thomas Whitaker
was callous and narcissistic:
Q. Did he ever tell you whether he thought there was any point to having a
social relationship with people?
A. Yes. He said he did not feel that there was a point to have social
relationships.
***
Q. When you talked about his relationships with others, did he ever use the
phrase he has no interest in relationships with friends, girlfriend or family?
A. Yes.
Q. In regard to his attitude about himself, did he ever say no one needs to
help him, he can do it, and he can do things because he does everything
well?
34
A. Yes.
Q. Did you reach a conclusion that the Defendant was very impressed with
himself?
A. Yes.
Q. To such an extent that you were disturbed by this interview, were you
not?
A. I was.
Q. Did you ever use the phrase "narcissistic" when you talked about him?
A. I did.
Id.
Dr. Harrison’s professional analysis, however, undermines the State’s depiction of
Thomas Whitaker as manipulative and narcissistic. Instead, Dr. Harrison found that Thomas
Whitaker was experiencing “increasing inner turmoil and upheaval, self-loathing, and
increasingly desperate attempts to appear normal.” Exh. ‘H’, at 3.
Rather than being a
supremacist, Thomas Whitaker was increasingly paranoid, feared ridicule, and felt others were
rejecting him. Id. Referring to Dr. O’Rourke’s 1997 analysis, Dr. Harrison found that the
“psychological test of Thomas, performed by a retained psychologist on September 17, 1997,”
“revealed [that] this man is experiencing the clinical symptoms of a delusional (paranoid)
disorder." Id., at 5.
b.
Dr. Harrison’s Expert Findings Rebut the State’s Primary
Punishment Phase Theory that Thomas Whitaker Murdered
His Family for Money.
Because trial counsel failed to retain a mental health expert, the State was freed from
facing a rebuttal witness, and was at liberty to portray Thomas Whitaker as a self-indulgent,
35
spoiled young man who murdered his family because he was greedy. However, mental illness
played a far more important role than venality. As Dr. Harrison found,
Thomas is in his 29th year of life demonstrating a psychotic disorder and has
yet to obtain appropriate medical management. Treatment is immediately
indicated with a combination of antipsychotic medication and mood elevators
as recommended by his psychiatric physician. That these murders were
motivated solely by greed is not supported whatsoever.
Exh. ‘H’, at 6.
c.
Dr. Harrison’s Finding That Thomas Whitaker Would Benefit
From Medication and Therapy Rebutted the State’s
Contention That Mr. Whitaker’s Drive to Murder His Family
Made Mim an Unstoppable Killer.
The State emphasized throughout the trial that Thomas Whitaker, through extraordinary
force of will and power of persuasion, had managed to convince several groups of his peers to
murder Thomas Whitaker’s entire family. Thomas Whitaker was portrayed as the mastermind of
the scheme and the master manipulator. The repeated attempts on his parents’ and brother’s life,
according to the State, showed that Thomas Whitaker’s murderous intentions were
unquenchable. According to the State,
“[I]t doesn't matter whether you treat this Defendant with kindness, as Mr.
Kent Whitaker does. It doesn't matter if you're the ideal father. If in his
mind somewhere along the line he perceives it different, you are now in
danger. And not only that, there's nothing you can do to stop it. Listen to
me, there's absolutely nothing you can do to stop it until he's in his grave.”
32 RR, at 69.
In closing, trial counsel accurately summarized the critical issue:
“They [the prosecutors] want to show that, at every stage of the game, that
Bart Whitaker is a manipulating individual, that he's smarter than everybody
else, that he does this and does that, it's always for his own good, all those
things. That's what they want to show you, you know. That would be
something that maybe you would consider someone being a continuing
threat to society. You know, look at the "M.O." though. How do you deal
with other inmates when you have no money, when you have no freedom,
36
when you have nothing to deal, nothing to manipulate with? All that's gone.
And he took it away from himself.”
32 RR, at 48.
However, because trial counsel did not retain a psychologist to counter the State’s
obvious strategy of portraying Thomas Whitaker as a cunning sociopath, trial counsel played into
the State’s hand. Trial counsel’s attempt to convince the jury that Thomas Whitaker would be
helpless to commit acts of violence because, in prison, “you have no money”, “nothing to deal,
nothing to manipulate”, was damaging on multiple levels. First, trial counsel agreed with the
erroneous theory that Thomas Whitaker murdered his family for money. Second, the State’s
rejoinder to the defense’s theory that Thomas Whitaker would be helpless once incarcerated was
that Thomas Whitaker did not need to pay assassins or use the threat of retaliation to induce
others to commit murder. The State argued resources did not matter, because Thomas Whitaker
was capable of convincing not just vulnerable individuals to carry out incredible crimes, but
capable of manipulating attorneys and psychologists:
He talked seven people – I'm talking about the five on the murders and the
two on the burglaries – to do things with him. He manipulated a trained
psychologist, after sessions, to write a letter saying "Don't worry, he won't
do anything like this again." He even convinced Lynne Sorsby to marry
him even after he was a suspect in a capital murder case and had lived a
double life in college. This is a good salesman. And there's a salesman on
this panel. This guy could sell ice to an Eskimo. But he doesn't do those
things. He perceives things in a different way. That's the threat, the
continuing threat, and it's been shown time and time and time again. Even
Lynne Ayres, the educational diagnostician: "This was a disturbing
interview," "narcissistic," "he looks at people as tools."
32 RR, at 71-72.
The State argued that putting Thomas Whitaker in prison would therefore not cut Thomas
Whitaker off from the means ordinarily needed to convince others to carry out his murderous
37
directives; everyone who opposed him, including the jury and the prosecutors, would still be in
mortal danger:
That means all of us are in that position now, every one of us. Jeff, me,
Marshall, we're the ones who did it. Sooner or later, he's going to turn
again, and what happens then? Do I keep looking over my back for the rest
of my life, years from now, five years from now? It doesn't take him long
to develop this perception that he hates you, somehow you have offended
him and you deserve to die.
32 RR, at 73.
Without a psychological expert to assist him, trial counsel was impotent in the face of the State’s
devastating argument that Thomas Whitaker’s attempt on his father’s life showed that he would
kill anyone who rubbed him the wrong way.
d.
Because He Did Not Retain a Mental Health Expert, Trial
Counsel Ended Up Embracing, in Open Court, the Adverse
Psychological Caricature the State Drew for the Jury.
Failure to consult a psychologist left trial counsel unable to muster a good faith argument
against the State’s misinformed psychological caricature of his client. In trial counsel’s 2009
affidavit, he agrees with the State’s pop-psychological profile of Thomas Whitaker. Throughout
the affidavit, trial counsel refers to Thomas Whitaker as a sociopath and a narcissist. Exh. ‘E’. In
his closing arguments, trial counsel conceded the legitimacy of this uninformed psychological
assessment. 31 RR, at 37.
And, you know, the State brought out the signs with Ayres, you know. That
was in 2002. All right? You can read into that that he is antisocial or
whatever word they want to put on that, but what you really see is an
individual withdrawing, an individual withdrawing from society. That's
exactly what he's doing. That is a huge sign, and, unfortunately, Mr. Whitaker, I
guess, saw that. I don't know. It was disturbing to Ayres.
Id., at 36-37.
38
Dr. Harrison’s report, however, dispels the prosecutor’s, and trial counsel’s, ill conceived
beliefs that Thomas Whitaker had the indiscriminate drive of a sociopath to manipulate and
destroy others, no matter whom. Dr. Harrison’s careful analysis, instead, demonstrates that
Thomas Whitaker’s anger was focused strictly on his biological family because of the conflicts
within the family, which were at the root of emotional problems serious enough to make Thomas
Whitaker mentally ill. As Dr. Harrison explained in his 2009 report,
Thomas was acutely aware of open conflict and acrimony of long duration
between his father and his mother’s parents, in all aspects of life. … As the
first born and oldest offspring to that family feud, much of the psychological
angst became infused and internalized in him. Even his birth name was a vain
attempt to achieve continuity and unity between the two families, he believed.
Thomas Bartlett Whitaker—even his name was a lie, he concluded. He so
hated that he was also a Bartlett inside and shared his mother’s and brother’s
genetic curse, much more like a Whitaker (his father) in many ways, and so
much unlike his brother and mother (Bartletts), that he lacked any ability to
nullify the conflict, make peace with his inner self, or rationalize or
intellectualize the problem away.
Exh. ‘H’.
Furthermore, Dr. Harrison could have explained that Thomas Whitaker’s descent into
obsessive, delusional hatred of his biological family was not an inexorable process that could no
longer be contained. Rather, Dr. Harrison would have been able to point out that this was a case
where the public school system, “despite many opportunities,” failed to identify Thomas
Whitaker “as an at-risk child and assemble a special educational program, or alternative services
under Sec. 504 of the Texas Education Agency (TEA), to address his insidious social and defiant
attitudes and behaviors.” Id.
Pursuant to a thorough psychological inquiry, Dr. Harrison
determined that early intervention by a psychologist would have “revealed many of his emerging
issues with delusional content of thought and diminishing coping.” Id. However, “instead, the
school system expelled Thomas absent an assessment of his needs.” Id.
39
Of vital importance, Dr. Harrison could also have refuted the State’s insistence that
Thomas Whitaker’s murderous drive was sociopathic and, therefore, unstoppable. He could
have provided readily understandable testimony that Thomas Whitaker would have benefited
from modest pharmacological treatment. Singling out Dr. O’Rourke’s report, Dr. Harrison
concurred with its “discuss[ion] [of] the benefits of medication which would “modulate the
threshold and intensity of reactivity” that resulted in Thomas’s criminal conduct. Id. With
psychological assistance, trial counsel could have stressed, as Dr. Harrison does, that “Thomas
never received any benefit from antipsychotic medications which are well known for their
efficacy in managing such symptoms.” Id.
Because trial counsel failed to retain a psychologist, the State was also able to magnify
the importance of Thomas Whitaker’s very sparse record of juvenile delinquency.
When
Thomas Whitaker was a teen, he burglarized several public schools with a group of friends, and
stole the school’s computer equipment. The crime involved repelling unarmed into empty
buildings. The group did not wantonly trash or destroy the facilities. Rather than fencing the
equipment, the group put it in storage. However, the State made a criminal prank, which
involved other adolescents (who have not gone on, as far as we know, to commit mayhem) into a
manifestation of sociopathy and a precursor to murder. Trial counsel was unable to counter this
devastating picture. However, a competent psychologist could have shown that what was needed
was counseling and medication. Instead, Thomas’s parents took action that exacerbated Thomas
Whitaker’s underlying mental health problems, namely, they sent Thomas Whitaker “to a more
strict religious educational program at Fort Bend Baptist Academy.” Id.
As Dr. Harrison
explained, this “was like jumping from the pot into the fire for him psychosocially,” since he
40
“encounter[ed] a tighter spectrum of oppressive and non-responsive culture there than he had
experienced at Clements High School.” Id.
A psychologist could have also directly countered the State’s argument that the murders
in this case were the result of inexcusable narcissistic tendencies that Thomas Whitaker
cultivated. According to Dr. Harrison, Thomas Whitaker, rather than being narcissistic and
grasping, was repelled and alienated by what he perceived to be a materialistic and narcissistic
suburban culture. Id. Like Dr. Brown (Exh. ‘G’), Dr. Harrison concluded that the State’s
contention that these murders were motivated solely by greedy self interest was not supported
whatsoever. Exh. ‘H’, at 6. Similarly, with psychological assistance, trial counsel could have
undermined the State’s theme that Thomas Whitaker was a spoiled child who repaid the
privileges bestowed upon him with murder.
2.
Consistent Reports of Substantial Mental Problems Over Time
Soundly Refute the State’s Speculative Notion That Psychological
Testimony Would Inevitably Have Harmed Thomas Whitaker.
The central assumption behind the State’s argument that trial counsel cannot be faulted
for neglecting to investigate a mitigation defense based on psychological evidence is that
psychological testimony could only be harmful. As State habeas counsel stressed, however, the
opposite is true. Psychologists who have examined Thomas Whitaker have uniformly found
indications that he suffered from a substantial mental illness that included delusional and
paranoid thinking. Furthermore, these results are consistent over time. Dr. Harrison’s findings
regarding Thomas Whitaker’s Axis I diagnoses in 2009 are consistent with Dr. O’Rourke’s
findings twelve years earlier, as are their recommendations for intervention with counseling and
medication. Just as importantly, both psychologists discount or defer diagnoses of antisocial and
narcissistic disorder.
41
Dr. Brown’s 2005 report and Dr. Diane Mosnik’s 2011 report (Exh. ‘M’) corroborate the
central findings made by Dr. O’Rourke and Dr. Harrison, and disprove the State’s speculation
that psychological testimony would converge on diagnoses harmful to Thomas Whitaker’s
punishment phase defense. Based on a clinical interview and the results of objective tests, both
psychologists determined that Thomas Whitaker suffered from depression, anxiety, serious
problems with personal identity and delusional thinking as a consequence of these issues.
Neither psychologist endorsed diagnoses of narcissistic disorder or anti-social disorder.
On December 2, 2005, 14 months before trial, Dr. Brown conducted a psychological
examination of Thomas Whitaker at the Fort Bend County Jail. Exh. ‘F’. The evaluation
consisted of “a clinical interview together with the administration of a battery of psychological
tests, including the Minnesota Multiphasic Personality Inventory-2, Sixteen Personality Factor
Questionnaire, and the Mooney Problem Checklist.” Id., at 1. The psychological test results
revealed “high levels of emotional disturbance and intensely felt psychological conflict.” Id., at
5. Dr. Brown determined that Thomas Whitaker was “seriously depressed and is having trouble
controlling ideas and thoughts that he experiences as alien and disturbing.” Id., at 5. Crucially,
Dr. Brown found that Thomas Whitaker was “endorsing many items suggestive of serious
psychopathology.” For example, Thomas Whitaker harbored “intense feeling of inferiority and
insecurity, and feels guilty about perceived failures,” but at the same time, “he [was] suspicious
and distrustful of others and avoid[ed] emotional ties.” Id.
In summary, Dr. Brown concluded that,
[T]his is a troubled and confused young man who struggles with deepseated feelings of inferiority and inadequacy. He has never lived up to his
potential because he decided at an early age that he must protect himself
against any exposure to hurt and rejection by developing a façade of
cynicism and pseudo-independence. … As he became more isolated and
detached from the world, his plans and ideas became increasingly unreal,
42
fantastic, and peculiar. His violent actions against his family are the
culmination of this pathological process, an acting-out of rage against them
that had been building for years, while at the same time also serving as a
desperate, bizarre plea for the attention he desired but never received.
These dynamics and the psychological reasons for this offense do not make
it the typical murder-robbery that would qualify for a capital murder
prosecution. In this case, the primary motivation was passion rather than
profit.
Id., at 5.
After a clinical interview and extensive objective testing, Dr. Mosnik arrived at similar
findings.
As can be seen from the data, there is fundamental agreement between the
data from this evaluation and that from prior evaluations in the findings of
anxiety disorders, signs of depression, consistent and pervasive identity
issues with lack of a sense of self, inner turmoil and distress compounded
by suspiciousness, resentment, and a negative misperception of others
treatment of him. The constellation of these clinical symptoms has serious
psychological consequences, even potentially to delusional proportions, as
indicated in early assessments of the client when he was embroiled in the
height of his anger and feelings of repression.
The results of this psychological evaluation, as well as the results of prior
psychological evaluations, revealed data to support the presence of
significant mental health conditions, disorders that could have been treated
successfully pharmacologically, including depression and anxiety, present
throughout the client’s life beginning in late adolescence. The fact that this
relevant data was not appropriately recognized and utilized during the
client’s trial, or even as mitigating circumstances during the punishment
phase, was clearly a disservice to and improper representation of the client.
It appeared as though the client’s prior attorney felt he could come to his
own conclusions about the presence or absence of any mental health
diagnoses the client may or may not have, despite his lack of any
professional training in the mental health or medical fields.
Exh. ‘M’, at 18.
Dr. Mosnik goes on to emphasize the serious error in trial counsel’s unguided
determination that psychological testimony would benefit the state by confirming trial counsel’s
improper diagnosis of sociopathy and narcissism.
43
The results of this psychological evaluation, as well as the results of prior
psychological evaluations, revealed data to support the presence of
significant mental health conditions, disorders that could have been treated
successfully pharmacologically, including depression and anxiety, present
throughout the client’s life beginning in late adolescence. The fact that this
relevant data was not appropriately recognized and utilized during the
client’s trial, or even as mitigating circumstances during the punishment
phase, was clearly a disservice to and improper representation of the client.
It appeared as though the client’s prior attorney felt he could come to his
own conclusions about the presence or absence of any mental health
diagnoses the client may or may not have, despite his lack of any
professional training in the mental health or medical fields.
The literature is replete with discussions of misattributions by the lay public
in regards to what certain psychiatric diagnoses represent and what
symptoms comprise various mental health diagnoses. The fact that
individuals in the lay public may inappropriately believe that an individual
who engages in any criminal act carries a diagnosis of antisocial personality
disorder or believe that if someone is motivated by money they are
narcissistic, highlights the importance of the need for a proper evaluation to
be completed by a trained professional in the mental health field to
determine whether or not a mental health condition could have been a
contributing factor in any criminal act.
Id., at 17.
3.
Interviews of Non-Family Witnesses Attest to Mr. Whitaker’s Mental
Problems and Emotional Turmoil.
In State proceedings, Lynne Soresby provided important evidence regarding Thomas
Whitaker’s crisis of identity and inner turmoil. Co-defendant Steve Champagne has recently
offered evidence regarding Thomas’s alienation from his family and his odd behavior, including
possible multi-substance abuse. Mr. Champagne’s mother has also confirmed Thomas’ total
estrangement from his family, and the emotional toll these feelings appeared to have, confirming
in important respects evidence from Soresby and Champagne, and contradicting the State’s
allegation that Thomas Whitaker was merely a narcissistic sociopath.
44
D.
The State Court’s Decision That Trial Counsel Was Effective Involves an
Unreasonable Application of, or is Contrary to, Supreme Court Precedents;
or is Based on an Unreasonable Determination of Facts Under Title 28 U.S.C.
§ 2254(D)(1) and (2)
The TCCA made the following factual findings related to Thomas Whitaker’s claim that
he failed to investigate and sponsor mitigating psychological evidence.
32.
Based on his credible affidavit, Mr. McDonald spoke with Applicant's
psychologist, Dr. O'Rourke [McDonald Aff at 4]. Mr. McDonald determined
there was no evidence of retardation or psychological problems other than an
indication that Applicant had an antisocial and narcissistic personality.
33.
Based on his credible affidavit, Mr. McDonald observed that Applicant
had a tendency for anti-social behavior, a lack of empathy for the feelings of
others, and was, in Mr. McDonald's opinion, narcissistic.
34.
Based on his credible affidavit, Mr. McDonald believed that Applicant's
psychological qualities-tendency for anti-social behavior, lack of empathy for
the feelings of others, and narcissism-would assist the jury in finding Applicant
to be a continuing threat to society rather than mitigate against the imposition of
the death penalty.
35.
Mr. McDonald reasonably determined that indications Applicant was
antisocial and narcissistic would support a finding of future dangerousness and
that psychological testimony would not mitigate against the death penalty.
36.
Based on his credible affidavit, Mr. McDonald, who is well-acquainted
with Dr. Jerome Brown, determined that Dr. Brown would not provide favorable
testimony in Applicant's behalf.
37.
Applicant does not state in his affidavit that he is homosexual or that he
has repressed that tendency, and he does not explain how his repressed
homosexuality is mitigating to his case.
38.
Based on his credible affidavit and his experience, Mr. McDonald knew
that he could request funds from the Court to hire an investigator and a
mitigation expert and that money was not an issue.
39.
Based on his credible affidavit, Mr. McDonald knew that Applicant's
original counsel had hired an investigator, P. M. Clinton, who did not uncover
anything useful to the defense. Mr. McDonald discussed hiring an investigator
with Applicant's father, Kent Whitaker, and was left with the impression that
hiring investigator would be a waste of money.
45
40.
Based on his credible affidavit, Mr. McDonald determined that any
testimony from a psychologist would be harmful to Applicant and allow the State
to show that Applicant did not have a conscience, was narcissistic, and could not
be remorseful.
41.
Based on the record and the Court's own personal recollection, there was
never a question of Applicant's competency to stand trial.
42.
The news article attached to Applicant's application as Exhibit 7 quotes
the presiding juror as saying, "I was praying he would show repentance and give
me a reason not to pass that judgment on him." This quote corroborates trial
counsel's belief that Applicant needed to convince the jury that this was a onetime event for him, that he had changed, had forgiven his father for whatever
transgressions he thought his father had committed against him, and that he was
remorseful.
43.
Based on his credible affidavit, Mr. McDonald knows Dr. Kit Harrison
personally and knows about his testimony. Mr. McDonald would not have hired
Dr. Harrison as an expert in this case, if he had felt an expert was needed.
44.
Based on his credible affidavit, Mr. McDonald is aware of the ABA stance
on mitigating evidence. Mr. McDonald believes it is appropriate to retain a
psychological expert when, unlike Applicant, the defendant is mentally retarded
or suffers some psychological problem that makes the defendant less
blameworthy.
45.
Based on his credible affidavit, Mr. McDonald found no mitigating
evidence and made a deliberate determination not to pursue the mitigation issue.
46.
In his application for writ of habeas corpus, Applicant does not present the
types of mitigating evidence uncovered by the applicants in Rompilla v Beard,
545 US 374 (2005), Wiggins v. Smith, 539 U S 510 (2003), or Williams v. Taylor,
529 US 362 (2000), such as, severe physical or sexual abuse while a child, being
left alone for lengthy periods of time and being forced to eat paint chips, garbage,
or to beg for food, being beaten, molested, or raped, living on the street, living in
a home with urine, feces, dirty dishes, and trash, living with intoxicated parents,
borderline mental retardation, education only to the sixth grade, violent beatings
and fights between his mother and father, alcoholism in his family or drug abuse.
47.
Based on the record, and the Court's own personal recollection, Applicant
was raised by loving parents in an upper middle class home in Sugar Land, Texas,
was intelligent, attended Baylor University, and was given every opportunity to
succeed.
46
48.
Based on the record, and the Court's own personal recollection, the
evidence that Applicant had planned and participated in the murders of his mother
and younger brother was overwhelming and included evidence that:
a. Applicant had conceived three plans for murdering his family before
attempting to kill them the first time;
b. Applicant had tried to kill his family twice before;
c. Applicant had lied about graduating from Sam Houston State University
knowing that his parents would purchase a Rolex watch for him as a
graduation gift and knowing that he had not attended school since Spring
2003 and had a 1.41 grade point average;
d. Applicant had dinner with his family in celebration of his fake
graduation, then escorted his family home to be gunned down just as he
had planned;
e. Applicant lived with his father after the murders and denied his
involvement in the murders;
f. Applicant stole $10,000 from his father and fled the country for nearly
three years; and
g. On the anniversary of the deaths of his mother and brother, Applicant
called his father to complain about his attorney's representation.
49.
Based on the reporter's record, and the Court's personal recollection, the
jury deliberated on punishment all afternoon and were sequestered overnight.
50.
In light of Mr. McDonald's review of the evidence and independent
investigation, Applicant's father's forgiveness and request for a life sentence as
punishment for Applicant's murdering his wife and younger son, and the request
for a life sentence from Applicant's mother's family, Mr. McDonald's strategic
decision to not pursue the mitigation issue was reasonable and not deficient.
51.
Applicant fails to prove by a preponderance of the evidence his allegations
of deficient performance in allegedly failing to conduct any significant
preparation for the punishment phase of trial or to present alleged mitigating
52.
Even if Mr. McDonald's strategic decision were deficient, Applicant fails
to prove by a preponderance of the evidence that, but for trial counsel's failure to
present psychological testimony showing Applicant had repressed homosexual
tendencies all his life or was bi-sexual, was antisocial, narcissistic, manipulative,
incapable of controlling his delusional thinking, has multiple personalities and an
47
extra Y chromosome, there is a reasonable probability that he would have been
sentenced to life.
53.
Applicant fails to prove by a preponderance of the evidence that, but for
trial counsel's alleged failure to prepare for the punishment phase of the trial,
there is a reasonable probability that he would have been sentenced to life.
Based on the forgoing factual findings, the TCCA adopted the following conclusions of law:
8.
Mr. McDonald reasonably determined that indications Applicant was
antisocial and narcissistic would support a finding of future dangerousness and
that psychological testimony would not mitigate against the death penalty and no
deficient performance is shown.
9.
In light of Mr. McDonald's review of the evidence and independent
investigation, Applicant's father's forgiveness and request for a the sentence as
punishment for Applicant's murdering his wife and younger son, and the request
for a life sentence from Applicant's mother's family, Mr. McDonald's strategic
decision not to pursue the mitigation issue was reasonable and was not deficient.
10.
Applicant fails to prove by a preponderance of the evidence his allegations
of deficient performance in allegedly failing to conduct any significant
preparation for the punishment phase of trial or to present alleged mitigating
11.
Even if Mr. McDonald's strategic decision were deficient, Applicant fails
to prove by a preponderance of the evidence that, but for the omission of the
alleged mitigating psychological testimony about Applicant's repressed
homosexual tendencies, his being bi-sexual, antisocial, narcissistic, manipulative,
incapable of controlling his delusional thinking, multiple personalities, and extra
Y chromosome, there is a reasonable probability that Applicant would have been
sentenced to life imprisonment.
1.
The Actual Basis For the TCCA’s Decision Must be Examined For
Factual Reasonableness and Conformance to Supreme Court
Precedents.
Under Harrington v. Richter, 131 S.Ct. 770, 786 (2011), if the State court does not
articulate the rationale for its decision, a federal habeas court hypothesizes as to the State court's
reasoning. Because the TCCA decision incorporates an expansive list of findings and legal
conclusions, the Richter standard does not apply, see, Walker v. McQuiggan, --- F.3d ----, 2011
WL 3873787, *7 (6th Cir. 2011), and the habeas court does need not engage in counterfactual
48
analysis of what “arguments or theories” “could have supported, the State court's decision.”
Richter, 131 S.Ct. at 786. AEDPA review, instead, must focus on the extensive, enumerated
findings and conclusions constituting the TCCA’s opinion. See, McQuiggan, supra.
2.
The Finding of Facts, on Which the TCCA’s Opinion Regarding
Counsel’s Effectiveness Depends, are Fatally Infected With Multiple
Unreasonable Errors.
The TCCA’s findings suffer from three general deficiencies that clearly render them
unreasonable. Foremost, is a misunderstanding of what the psychological evaluation of mental
illness involves. Related to this error are findings that misstate the analysis and conclusions of
the psychological experts who evaluated Mr. Whitaker before and after trial.
Finally, the
findings are subjective. Virtually every one is a statement about what things trial counsel
believed, and not a finding that trial counsel justifiably held these beliefs, nor a finding that the
propositions that the TCCA decided trial counsel believed were true or supported by the
evidence. Furthermore, the findings of fact adopted by the TCCA are mistaken down to their last
details.
Finding 32 mistakenly implies that Dr. O'Rourke was Thomas' psychotherapist at the
time of trial. It also erroneously indicates that Dr. O'Rourke informed Mr. McDonald that (i)
Thomas Whitaker suffered from antisocial and narcissistic personality disorders and (ii) also
stated that he did not exhibit any other psychological syndromes. Findings #32. Dr. O'Rourke's
April 21, 2011, affidavit confirms the falsity of each proposition. As Dr. O’Rourke stresses, she
determined in 1997 that the anti-social and narcissistic traits that Thomas exhibited at age 17
could not be extrapolated into adulthood. Exh. ‘L’. The results of the MCMI-II she administered
also indicated that ''there is reason to believe that [Thomas Whitaker] is experiencing the clinical
symptoms of a delusional (paranoid) disorder (e.g., irrational jealousy, ideas of reference).”
49
Indeed, Dr. O’Rourke’s records indicated that Thomas Whitaker suffered from a treatable mental
disorder for which he was not getting the proper psychiatric therapy. Thus, Dr. O’Rourke’s 1997
records, which were presented to the trial court in post conviction proceedings,6 show that her
testing supported the conclusion that "it would be advisable to ameliorate this patient's current
state of anxiety or hopelessness by the rapid implementation of supportive psychotherapeutic
measures or targeted psychopharmacologic medications." As Dr. Harrison points out, this is
consistent with findings he made in 2009. Finally, Dr. O’Rourke clarifies in her 2011 affidavit
that trial counsel only spoke with her briefly about her report on one occasion, countering any
suggesting that trial counsel adequately investigated Thomas Whitaker’s psychological history.
Finding 33 states that trial counsel “observed that Applicant had a tendency for antisocial behavior, a lack of empathy for the feelings of others, and was, in trial counsel's opinion,
narcissistic.” As Dr. Harrison points out, this finding rests on an erroneous understanding of
mental illness and personality disorders. Exh. ‘M.1’, at 1. Antisocial personality disorder,
narcissistic personality disorder, and sociopathy or psychopathy, must be diagnosed after a
careful history and examination. Id. Each disorder is defined by multiple factors or traits, which
a clinician must inquire into, test for, and record. Id. Without a proper investigation, these
complex psychological categories cannot be "observed," certainly not by laypersons with no
training, and trial counsel admitted in closing arguments that he had none. Id. Trial counsel
clearly did not follow any recognizable protocols, nor create any records supporting his
“observations”. Id.
The second sentence of Finding 33 suggests that Dr. O'Rourke informed trial counsel
"that there was no evidence of retardation or psychological problems other than an indication
that Applicant had an antisocial and narcissistic personality.” However, Dr. O'Rourke's 1997
6
See State’s Answer to Applicant’s Original Application for a Writ of Habeas Corpus, Exh. ‘C’.
50
Case 4:11-cv-02467 Document 2-1
report (results of the MCMI-II) indicates that an Axis I diagnosis of delusional disorder marked
by paranoid features should be considered. Exh. ‘F’, at 4-5. In Dr. O’Rourke’s 2011 affidavit,
Dr. O’Rourke denies the State’s insinuation that she told trial counsel that Thomas Whitaker did
not have psychological problems besides being antisocial and having narcissistic personality.
Exh. ‘L’. In addition to being clearly erroneous, these “facts”, on which the TCCA decision
rests, show tell-tale signs of fabrication.
Finding 34 is a statement about trial counsel’s beliefs. To the extent that it implies
McDonald believed that Thomas Whitaker suffered from the personality disorders listed, and
that psychological investigation would just confirm them, it is clearly erroneous for the same
reasons Finding 33 is. Furthermore, it ignores the fact that a jury needed a psychological
explanation for the State’s evidence that Thomas engaged in anti-social conduct, lacked empathy
and was narcissistic, which State’s evidence, trial counsel conceded during closing argument,
trial counsel intentionally allowed into evidence to facilitate the jury’s “awful, awful judgment.”
32 RR 65.
The assertion in Finding 35 that trial counsel reasonably determined that “indications
Applicant was antisocial and narcissistic would support a finding of future dangerousness and
that psychological” misfires. True, juries tend to consider this type of evidence unfavorably if it
is not refuted or explained. However, it is an absurd basis for finding effectiveness of counsel in
light of the fact that trial counsel intentionally let “indications that Applicant was antisocial and
narcissistic” into evidence through Ayres and then permitted the State to argue this evidence in
closing. 32 RR 72. Furthermore, the determination that “psychological testimony would not
mitigate against the death penalty” is speculative and false. Psychological findings of Dr.
O’Rourke and Dr. Harrison show that testimony from qualified practitioners would have refuted
51
the harmful, incompetent testimony that trial counsel intentionally allowed the State to introduce
through Ayres so the jury, in trial counsel’s words, could make its “awful, awful judgment.”
Finding 36 is another statement about trial counsel’s personal opinion, this time, his
opinion of Dr. Brown. On the other hand, the implication that trial counsel consulted with Dr.
Brown and thereafter came to the conclusion that Dr. Brown’s testimony would be detrimental is
a false and misleading implication. In 2005, Dr. Brown drafted a very sympathetic report that
described a forlorn defendant whom Dr. Brown diagnosed with a delusional disorder. Exh. ‘G’.
Dr. Brown also flatly contradicted the State’s theory that Thomas Whitaker murdered for money.
Id.
Finding 37 betrays very basic misunderstandings of psychology and the evidence. The
implication is that the contention in State court was that repressed homosexuality is mitigating
badly distorts the record. Dr. Harrison explained that Thomas was conflicted about his sexuality
and gender/sexual identity.
From an early age, he expressed preference and displayed
mannerisms typically associated with children raised as females, and persisted even though his
parents, particularly his father, took what he thought were corrective steps to prevent Thomas
from acting femininely.
Thomas' fundamentalist religious upbringing and schooling was
alienating and oppressive because it reinforced traditional gender roles and condemned
deviations from them in the harshest terms. The conflict - not Thomas' sexual preference taken
in isolation - caused by Thomas' receptivity to "feminine ... interests, speech and behavior" with
the image he knew his parents' desired, and with the institutions that were essential to the
family's identity and social well being, contributed directly to Thomas' psychological turmoil.
Exh. ‘M.1’.
52
Finding 40 on its face is simply a statement about trial counsel’s subjective beliefs. The
inference that these beliefs are factitive and that “any psychological testimony would inevitably
harm Thomas Whitaker” is contradicted by pre-trial and post-trial psychological evaluations in
this case. Dr. O’Rourke, Dr. Brown, and Dr. Harrison all found significant signs of serious
mental illness.
Finding 42 refers to a news article quoting a juror who said after the trial that he prayed
Thomas “would show repentance and give me a reason not to pass that judgment on him.”
However, this is irrelevant, except as confirmation that trial counsel put on an incompetent
punishment phase defense and, specifically, failed to prepare his witnesses. The comment
highlights the serious mistake of having Thomas testify without having a way to explain to the
jury why Thomas’s affective responses are, at times, somewhat blunted. That Thomas may have
had fundamental difficulties with empathy and reciprocal communication, the gold standard of
many Axis I conditions arising out of the formative years, could have been explained in a
germane way to the jury by a number of testifying psychologists available in the Houston area.
As for the need to show the jury that the offense was "a one-time event”, and that
Thomas "had changed" and "forgiven his father", it is difficult to imagine why a reasonable
attorney representing a client with Thomas's psychological and behavioral traits would think he
could achieve these goals without the assistance of a psychologist or psychiatrist.
Finding 43 again may be an accurate statement about trial counsel’s attitude towards Dr.
Harrison. However, it does not excuse trial counsel’s refusal to consult in a meaningful manner
with any psychologist at all. Furthermore, it indicates that the TCCA badly misunderstands the
applicable standard. A defendant does not have to demonstrate that defense counsel should have
retained at trial the same expert who now supports his post-conviction pleadings.
53
The
constitutional inquiry is whether trial counsel’s failure to develop the type of psychological
evidence that supports the claims for habeas relief fell below reasonable professional standards.
The assertion in Finding 44 that trial counsel believes it is appropriate to retain a
psychological expert when, unlike Applicant, the defendant is mentally retarded or suffers some
psychological problem that makes the defendant less blameworthy, is another piece of
biographical information about trial counsel. The inference suggested, which is that Thomas
does not "suffer some psychological problem that makes the defendant less blameworthy," is
based on the mistaken "observations" of a witness who is incompetent to render such an opinion.
It is falsified, as well, by the psychological tests and analyses of qualified expert witnesses who
examined Thomas before and after trial.
TCCA’s 45th Finding states that based on his credible affidavit, trial counsel found no
mitigating evidence and made a deliberate determination not to pursue the mitigation issue.
However, this does not address the reasonableness of trial counsel’s investigation.
The
implication that there actually was no mitigating evidence to be found is groundless. Dr.
Brown's 2005 report and Dr. Harrison’s findings in 2009 show there was considerable evidence
that Mr. Whitaker suffered from a mental illness that affected his thinking and conduct leading to
the crime. This is classic mitigating evidence. Trial counsel did not find mitigating evidence
because he made a clearly deficient decision not to have Thomas evaluated by a qualified
psychologist or psychiatrist.
In Finding 46, the TCCA draws a contrast between Thomas Whitaker’s case and the
social situations and histories of petitioners to whom the Supreme Court has granted relief.
Finding 46 betrays a misunderstanding of mental illness. Poverty and abuse are not the only
causes of mental illness and psychological turmoil. Furthermore, the evidence recited in Finding
54
46 can often be effectively presented without the assistance of a psychological expert. In
contrast, the mitigating evidence in Thomas's case had to be developed and presented through a
mental health expert. The biological and genetic aspects of antisocial behavior could have been
explained to the jury by a psychologist, as well as the ramifications of parental neglect of
emerging symptoms of personality and Axis I disorders is an area of mitigation not explored.
Finding 47 focuses on the Whitaker family’s household income, suburban environment
and the advantages that redounded to Thomas Whitaker. However, as Dr. Harrison points out,
the Finding ignores the fact that individuals in Thomas's circumstances can and do develop
significant psychological syndromes that adversely affect their emotions and judgments. The
Court also ignores inter-familial difficulties within the immediate family and with his mother’s
relatives, the explanation of which would have cast Mr. Whitaker in a much more sympathetic
light. Exh. ‘M.1’.
3.
The TCCA’s Conclusions of Law Incorporate Unreasonable Factual
Findings and Violate Supreme Court Precedents.
Conclusion of law eight (8) repeats the errors that pervade factual finding 35 – i.e., the
false premise that Applicant actually suffered from “antisocial and narcissistic” personality
disorders -- thereby making explicit that the TCCA’s decision regarding deficiency rests on
unreasonable findings.
Conclusion nine (9), on the other hand squarely conflicts with the Supreme Court’s
admonition that the development of one defensive strategy does not absolve counsel from
conducting a reasonable investigation into other punishment phase defenses. See,Wiggins, 539
U.S. at 421 (citing Strickland, 466 U.S. at 673).
Similarly, conclusion ten (10) is directly contrary to the holding in Wiggins, supra.
Contrary to what the TCCA assumes the law implies, a habeas applicant does not have to
55
establish that his trial counsel failed to engage in “any significant preparation” or that he failed to
investigate and sponsor any mitigating evidence. Instead, the test is whether trial counsel
unreasonably failed to meaningfully investigate significant leads to important mitigating
evidence. Trial counsel obtained Dr. O’Rourke’s 1997 test results and spoke to Dr. O’Rourke
briefly. However, that does not satisfy Supreme Court law, see, Wiggins, supra, especially when
the test results state that “on the basis of the test data it may be assumed that the patient is
experiencing a severe mental disorder,” that “further professional observation and care are
appropriate,” and concludes with the recommendation that “it would be advisable to attend to
and ameliorate this patient's current state of anxiety or hopelessness by the rapid implementation
of supportive psychotherapeutic measures or targeted psychopharmacologic medications.” Exh.
‘L’, at 2, 6. In the face of clear indication that Thomas Whitaker suffered from mental illness,
trial counsel’s failure to retain a mental health expert to investigate, interpret and present a
mental health defense, clearly was constitutionally deficient.
The TCCA prejudice analysis applies Strickland’s second prong to facts distorted by
erroneous findings implying that an investigation into mitigating mental health issues would
reveal nothing but harmful psychological evidence. Conclusion of Law #11 confirms that the
TCCA only considers the psychological evidence to be allegedly mitigating, but not actual
mitigating. Conclusions of Law #11. The TCCA then listed psychological conditions with which
Thomas Whitaker was not diagnosed – narcissism, anti-social behavior,
uncontrollable
delusional thinking 7 – as (i) the evidence that he would have presented to the jury and (ii) made
this undiagnosed conditions the focus of its prejudice analysis. Id. Since the TCCA ignored the
Supreme Court’s instruction to engage in a “probing prejudice inquiry” into actually mitigating
7
The 1997 MCMI-II results and Dr. Harrison in his 2009 report state that Thomas Whitaker would likely respond
well to therapy and targeted psychopharmacological treatment.
56
psychological evidence, see, Sears 130 S.Ct. at 3265, and instead rested its decision on
misdiagnoses made by unqualified witnesses, the decision at once violates clearly established
Supreme Court precedents and rests on an unreasonable determination of facts. An evidentiary
hearing should therefore be granted to decide Thomas Whitaker’s ineffectiveness claim de novo.
II.
TRIAL COUNSEL’S FAILURE TO PREPARE HIS PUNISHMENT PHASE
WITNESSES DEPRIVED THOMAS WHITAKER OF HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
“The failure to prepare a witness adequately can render a penalty phase presentation
deficient.” Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009) (citing Douglas v. Woodford, 316
F.3d 1079, 1087 (9th Cir. 2003)). In Groseclose v. Bell, 130 F.3d 1161, 1166 (6th Cir.1997)
counsel was found ineffective because he failed to prepare adequately for mitigation four
witnesses. As a matter of course “thorough preparation demands that an attorney interview and
prepare witnesses before they testify.” United States v. Rhynes, 218 F.3d 310, 319 (4th Cir.
2000) (en banc). As a result, “[n]o competent lawyer would call a witness without appropriate
and thorough pre-trial interviews and discussion.” Id.
Disbarment has been the fate for
incompetent representation that included failure to prepare or interview witnesses. See, In re
Warmington, 212 Wis.2d 657, 668, 568 N.W.2d 641 (1997) (lawyer disbarred for, among other
things, “failing to supervise the preparation of an expert witness”); In re Wolfram, 174 Ariz. 49,
847 P.2d 94, 96 (1993) (failure to interview witnesses cited among reasons for suspending
attorney).
A.
Trial Counsel’s Decision Not To Prepare Punishment Phase Witnesses Was
Deficient.
In response to the allegation that trial counsel did not prepare Kent Whitaker for his
testimony, trial counsel admits that,
57
Regarding the testimony of Kent Whitaker, it is true that I told him that I
did not want to tell him what to say, as it would sound rehearsed. I based
that statement on the fact that I had seen his statements quoted in the paper
as well as heard them in my office when I was having him tell me his life
story. I believed that Kent Whitaker honestly believed what he was saying
and he honestly wanted the jury to spare his son's life. He also believed that
God's will would be done.
Exh. ‘E’, at 8-9.
Trial counsel clarifies how little he did to prepare Kent, when he compares what he did to
prepare his other punishment phase witness, Bo Bartlett, to the efforts he made with Kent
Whitaker. In trial counsel’s words, “when I presented Bo Bartlett as a witness, I had also
discussed with him his testimony much in the same manner as I did with Kent. I basically told
both to tell how they felt in front of the jury.” Id., at 9. Doing little more than instructing a
witness to “tell how they felt in front of the jury” is, on its face, a failure to prepare the witness.
As trial counsel’s affidavit attests, trial counsel did not go over the damaging records of
Lynn Ayer with either Bo Bartlett or Kent Whitaker. Trial counsel failed to inquire into whether
Kent Whitaker thought his son had changed, and failed to prepare him to answer questions
regarding his views about the State’s decision to seek the death penalty. Trial counsel also failed
to prepare Kent Whitaker to answer the State’s sharp cross examination regarding whether he felt
betrayed and manipulated by his son, failed to advise him to expect cross examination regarding
the privileges and efforts he had made to provide for his child, and failed to prepare him for
questions regarding his awareness of adverse psychological information in Ayers’ and Dr.
O’Rourke’s reports.
Clearly, trial counsel’s admissions and the State courts’ findings conclusively
demonstrate that trial counsel failed to prepare his witnesses for direct examination and failed to
58
provide advice regarding what to expect on cross examination. The constitutional deficiency of
this performance is uncontestable.
B.
Failure To Prepare Punishment Phase Witnesses Was Prejudicial.
Trial counsel’s affidavit and the State court’s findings of fact and conclusions of law
illustrate the extraordinary harm that counsel’s failure to prepare punishment phase witnesses
caused. Trial counsel maintained that his punishment phase strategy was to convince the jury
that Thomas was not a future danger. Exh. ‘E’, at 7. In order for that strategy to work, trial
counsel had to convince the jury that Thomas had changed. The most important witness was
Kent Whitaker.
As trial counsel’s affidavit makes excruciatingly clear, trial counsel’s proof that his son
had changed depended on Kent Whitaker testifying that he had seen important, fundamental
changes in his child’s thinking and outlook since his arrest. However, trial counsel did not
inquire into how Kent would respond on direct or cross to the question regarding Thomas’s
future dangerousness to society. Trial counsel did not prepare Kent Whitaker to explain why he
thought his son had changed, or find out if he believed this. Trial counsel basically told Kent
Whitaker to speak from the heart. Exh. ‘E’. The devastating effect of trial counsel’s failure to
discharge basic duties to prepare his most important punishment phase witness is reflected in
trial counsel’s admission that he was “surprised” when Kent Whitaker honestly testified that he
did not have any evidence that Thomas would not be a future danger to society. 8
Failure to prepare Kent for the State’s cross-examination not only played into the State’s
hand, it undermined Thomas’s own testimony. The State’s theory at punishment was precisely
that Thomas was still capable of deceiving his father and, therefore, capable of deceiving the
8
Q. Do you have any evidence to contradict that your son is not going to be a continuing threat to society?
A. I can't read his heart, Mr. Felcman. May I comment? 32 RR, at 178.
59
jury. Trial counsel’s opening remarks show that he realized that the State would drum this
theory home. Id., at 53. The jury could not reasonably conclude that they had better insight than
Kent into Thomas’s heart, i.e., his intentions and tendencies. With Kent Whitaker testifying that
he had no proof that Thomas would desist from scheming and manipulating others into
committing criminal acts of violence, the jury had every reason to conclude that there wasn’t
any.
Contrary to trial counsel’s punishment phase plans, Kent Whitaker actually testified that
his motive for asking the jury to spare his son had nothing to do with the future dangerousness
issue. Because he had not been given the most basic instructions – that on cross the best policy
is to answer straightforwardly without providing any more information than is necessary – Kent
Whitaker, without being solicited, explained that he was not asking the jury to spare his son
because he believed Thomas had changed and would no longer be a threat to others. 32 RR, at
168. Kent testified, instead, that he wanted the jury to give Thomas a chance to accept the Lord.
After the State’s cross revealed that Kent had no proof that Thomas’s supposed homicidal
tendencies had waned, Kent testified as follows:
I don't think you understand the basis for my -- my arguing against the death
penalty in this case. I am a loving father, don't want my son to die. I admit
it. That's, let's call it, a third of it. I want a relationship with my son, even if
it's in jail, where I can find out why this happened, but the majority of the
reason for my objection to the death penalty is because I can't read his heart.
While I believe that the person that came back from Mexico is different from
the person who left when he ran away, I don't know that for sure, but the only
bottom-line important factor or the single most important thing in my life
right now is that my son go to heaven, and if he has not accepted
responsibility in his heart for this, if he has not asked the Lord for forgiveness
-- I have forgiven him, I forgave whoever was involved, but the important
one is the Lord. If he has not done that, I want the jury to give him as much
time as possible so that he can reach that conclusion.
Id.
60
Trial counsel’s affidavit makes clear that trial counsel, because he did not prepare his
witnesses, was (i) no more aware of Kent Whitaker’s motives for testifying than the prosecutor,
and (ii) had completely different expectations for Kent’s testimony. Exh. ‘E’. Furthermore, the
“surprise” testimony that Kent Whitaker gave doomed the strategy of contesting the future
danger issue with Thomas Whitaker’s testimony that he had undergone a religious renewal or
conversion. Indeed, Kent Whitaker’s testimony that the jury should give Thomas Whitaker as
much time as possible to accept the Lord cut against this grain. It showed that as far as Kent
Whitaker could tell, Thomas Whitaker had not become a sincerely religious person by the time
of trial. Because trial counsel did not prepare his witnesses, or even bother to find out what they
would say to obvious cross-examination questions, Thomas Whitaker was put in the position of
having to convince the jury that he was credible after they heard his own father’s doubts about
his piety.
According to trial counsel’s 2009 affidavit, his secondary goal was to convince the jury
to spare Thomas Whitaker for Kent Whitaker’s sake. Exh. ‘E’. This required Kent Whitaker to
convince the jury that seeking the death penalty would not bring closure, but only cause him
more pain. Trial counsel, therefore, absolutely had to prepare Kent’s response to attempts by the
State to use the authority and prestige of the district attorney’s office to elicit statements
deferential to its charging decision. Trial counsel’s surprise is again a testament to his failure to
prepare Thomas Whitaker for this easily anticipatable line of questioning. As a result, Kent
Whitaker conveyed the impression at trial that he considered that the State’s decision was
reasonable or justifiable, rather than mean-spirited or vindictive. Because trial counsel had not
prepared, trial counsel failed to rehabilitate Kent Whitaker on re-direct with testimony about how
Kent Whitaker had beseeched the prosecutor on bended knee not to seek the death penalty.
61
Instead, it is clear from the state courts’ finding of fact that the jury was left with the feeling that
Kent Whitaker would be OK with, rather than devastated by, the death of his son.
III.
TRIAL COUNSEL’S FAILURE TO OBJECT TO THE STATE’S USE OF THE
PROFFER DEPRIVED THOMAS WHITAKER OF HIS SIXTH AMENDMENT
RIGHT TO COUNSEL.
A.
Failure to Object to the Proffer Was Deficient.
Although Felcman announced, during his direct examination of Kent Whitaker, that the
contents of the proffer that Cogdell and Ardoin had attempted to arrange could not be used for
any purpose, trial counsel still failed to object as Felcman proceeded to use the proffer to
impeach Kent Whitaker during guilt-innocence.
Trial counsel also failed to object while
Felcman used the document on cross-examination to demolish Thomas Whitaker’s chances of
convincing the jury that he had taken responsibility for the offense and felt deeply remorseful.
Failure to object pursuant to TRE 410 was clearly deficient.
The notion that allowing Felcman to use the proffer to impeach defense witnesses was a
strategic move to bring out Thomas Whitaker’s willingness to enter a plea does not pass muster.
The record clearly and convincingly shows that trial counsel did not find out from Cogdell what
caused plea negotiations to break down, and did not ask Cogdell about the proffer and the
circumstances under which Felcman procured it. Indeed, the record demonstrates that trial
counsel did not know that the proffer existed until Felcman sprung it on Kent and Thomas
Whitaker at trial. Speaking of the negotiations between Cogdell and the District Attorney, trial
counsel states,
“I have no idea what they [sic., Cogdell and the D.A.] were talking about, but,
obviously, there is some miscommunication going on, because they're talking
about trying to settle this case at that time, trying to not have to put a jury in the
box to make a life-and-death decision, not having to put the Whitakers and the
Bartletts through this horrible event, and somehow it breaks down. Now, where
does it break down? We know. We know by the way that Mr. Felcman reacts in
62
the courtroom with it. It breaks down with this phone call to his dad talking about
a number of years. You know, "bring in the big guns." You know, Dan Cogdell
is a big gun, there's no question about it. Okay? And apparently, somebody else
in his office has been over there preparing proffers, and the proffers are wrong.
Id. 41.
Finally, the record reveals that trial counsel did not obtain a copy of the proffer from
Felcman at trial even though Thomas Whitaker stated he had not written nor reviewed it. Trial
counsel does not ask to inspect the document, nor does he refer to it during redirect in order to
rehabilitate his witness. The fact that trial counsel states that “the proffers are wrong,” shows
that trial counsel did not even ask to see the proffer in order to prepare for closing argument,
since there is nothing factually incorrect in this document. See, Exh. ‘J.1’.
B.
Trial Counsel’s Failure to Object Was Prejudicial.
For reasons stated in CLAIM ‘I’ supra, the facts and argument of which are incorporated
by reference, the State’s unimpeded use of the proffer devastated the defense’s theory of change
and remorse that trial counsel maintained he attempted to sponsor.
IV.
TRIAL COUNSEL’S FAILURE TO DEVELOP A COHERENT TRIAL
STRATEGY VIOLATED THOMAS WHITAKER’S SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
Trial counsel admitted to the jury that there was no question about Applicant’s guilt when
he told them there “has never been a need to have this trial,” 25 RR, at 56, and that the purpose
of the trial was to get a life sentence. Trial counsel’s decision to have Thomas Whitaker refuse
to enter a plea, 32 RR, at 197, meant the judge had to enter a “not guilty” plea. Article 27.16(a),
C.Cr.P. It soon became obvious, during Felcman’s cross-examination of Thomas Whitaker, this
incoherent position was highly prejudicial:
A. (The Defendant) I don't know. That never entered my mind, sir. I was
always under the impression from the very beginning there was no other
63
outcome from this, there could be no other outcome other than a guilty
verdict.
Q. (Mr. Felcman) How could there not be another outcome from these
ladies and gentlemen when they decide guilty or not guilty?
A. (The Defendant) That was my feeling and the impression that my
attorney had given me.
Q. Well, then, what was this, "I refuse to plea" and make the Judge up there
enter a plea of not guilty, if you didn't think maybe this jury panel over here
may find you not guilty?
A. I don't know. That was not what I wanted to do, but this is all very -this is all huge to somebody sitting in my chair, when you have an attorney
that's been practicing law for 30 years tell you you're not going to do
something one way. I listened to him, and I didn't agree with it at the time,
and I don't agree with it now, but that was the way it was done.
Q. You don't want to really drag Mr. McDonald into this, do you, that
somehow he made you do this?
A. I took his advice, sir, so it was my decision, yes, but it was his very
strong decision.
Q. You were in this courtroom when these jurors heard from Mr. McDonald
that he's trying to seek justice on this case, did you not?
A. Yes, sir.
Q. But then you refused to plead guilty where you could have just gotten up
and said, "Ladies and gentlemen, I did this"?
A. Yes, sir.
32 RR, at 195.
Trial counsel ultimately objected, leading to a bench conference in which he stated:
(Mr. McDonald) I thought we made this really, really, really very clear
about this plea. We had a conference call about it, it's available to us. He
can't come back here and complain about that. I actually, on the record,
entered the plea. He did not. Okay? I argued to the jury the reason I did
that. He wants to call it legal maneuvering, and he knows what it is. The
bottom line is, if he enters a plea of guilty, then the accomplice testimony is
all that has to be offered. They are seeking the death penalty. I am trying to
64
get life. I am trying to actually get him to plead to life. He would have pled
guilty if he'd have given him life, but why are we going over this stuff over
and over?
(Mr. Felcman) Because he brought it up on the direct, that it was his idea to
do not guilty.
(Mr. McDonald) It was -- he just got through telling you I'm the lawyer. Do
you think he knows the law that you would enter a plea?
(The Court) I'm going to sustain the objection.
(Mr. Felcman) Okay, Judge.
(End of bench conference)
Id., at 195-196.
Although the lead prosecutor argued that he was engaged in this line of questioning
because Thomas Whitaker “brought it up on the direct, that it was his idea to do not guilty,” the
reverse actually took place. Shortly after being cross examined about the decision not to plead,
Thomas Whitaker testified that “[t]hat was not what I wanted to do” and that his decision was
based on trial counsel’s advice. 32 RR, at 196.
A guilty plea is traditionally taken to be a public acceptance of responsibility and a
demonstration of a willingness to accept the consequences. Trial counsel’s incoherent strategy
prejudiced Thomas Whitaker by depriving him of this most important indication of remorse.
The decision to contest guilt-innocence also wasted valuable resources, and needlessly exposed
his client, and Kent Whitaker, to impeachment. Trial counsel knew that it was essential to
establish the integrity and sincerity of his client. Because trial counsel announced in his opening
remarks, 25 RR, 51-58, that the case will be about punishment, an average juror would conclude
that Thomas Whitaker contested his guilt in the hopes of prevailing on a legal technicality or by
65
legal trickery. Putting the jury through a week of unnecessary testimony on guilt-innocence was
therefore prejudicial under Strickland.
V.
CUMULATIVE ERRORS OF TRIAL COUNSEL DEPRIVED MR. WHITAKER
OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE REPRESENTATION.
A.
The Decisions of Counsel Violated Professional Standards at Every Turn.
As the Supreme Court recently instructed in Padilla v. Kentucky, 130 S.Ct. 1473, 1483
(2010), the ABA Guidelines, while not binding, are important for measuring the performance of
counsel. Id. (“We long have recognized that “[p]revailing norms of practice as reflected in
American Bar Association standards and the like ... are guides to determining what is reasonable
... .”). The ABA emphasizes that in capital cases, defense attorneys representing defendants with
a history of mental illness must obtain all psychological records, consult a mental health expert,
and investigate a mitigation defense. 2003 ABA Guidelines § 4.1 (A)(2), and Commentary (“In
particular, mental health experts are essential to defending capital cases.”). The ABA standards
require co-counsel in capital cases, Id., at § 4.1(A)(2), and retention of an investigator. Id.
Commentary, A. The Investigator (“The assistance of an investigator who has received
specialized training is indispensable to discovering and developing the facts that must be
unearthed at trial.”). ABA standards for far less critical types of cases require counsel to prepare
witnesses, let alone key punishment phase witnesses. Counsel must also object to harmful
evidence. However, Thomas Whitaker’s attorney failed in all these respects.
B.
The Cumulative Error Was Prejudicial.
If trial counsel makes multiple deficient decisions, the Court should consider the
cumulative effect of the errors in order to determine prejudice under Strickland. See, Williams v.
Quarterman, 551 F.3d 352, n.3 (5th Cir. 2008). In this case, the errors set out in sections I-IV,
66
supra, had a devastatingly synergistic effect. Collectively, they deprived Mr. Whitaker of all his
defenses at the punishment phase.
Counsel deliberately decided not to sponsor a mitigation defense and maintains he
concentrated on contesting future dangerousness instead. Based on this reasoning, counsel failed
even to consult with a psychologist about Mr. Whitaker’s known mental health and emotional
problems. However, because counsel did not prepare his key punishment phase witnesses, he
did not know that their testimony would undermine his strategy for contesting the future danger
special issue.
The cumulative effect of counsel’s deficient decisions left Thomas Whitaker without any
defenses at the punishment phase. Kent Whitaker could not support counsel’s primary strategy
of showing that Thomas was no longer a future danger because Thomas had undergone
significant changes in outlook and values since the crime. Kent testified, instead, that he could
not look into his son’s heart. Kent then explained, to counsel’s needless “surprise”, that he was
asking the jury to sentence Thomas to life in order to give him the greatest opportunity to make
changes, implying, thereby, that he did not believe Thomas had made a meaningful religious
conversion. This undermined counsel’s frail hope of convincing the jury that Thomas had
undergone a religious transformation. Finally, counsel’s failure to object to the State’s use of the
proffer meant that even the woeful strategy of expressing remorse was devastated.
Importantly, the State courts’ findings of fact and conclusions of law confirm (i) that
counsel failed in the manner described above and (ii) that in so doing, counsel badly prejudiced
his client’s opportunity for a life sentence.9 Clearly, relief based on ineffective assistance of
counsel is warranted. This Court should order a new punishment phase.
9
For example, FF&CL # 54, 55, and 56 confirm that trial counsel expected that Kent Whitaker would speak to
changes he had seen in Thomas and argue with the prosecutor about his charging decision. The findings confirm
67
CLAIM THREE
THOMAS WHITAKER’S DEATH SENTENCE IS ARBITRARY AND EXCESSIVE, IN
VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, BECAUSE THE PUNISHMENT IS BASED ON
UNRELIABLE SPECULATION ABOUT HIS FUTURE BEHAVIOR.
A.
By Requiring the Jury to Speculate About a Defendant’s Future
Dangerousness, the Texas Capital Sentencing Scheme Produces Inherently
Arbitrary Death Sentences and Therefore Violates the United States
Constitution.
By requiring juries to speculate about a defendant’s future dangerousness, the Texas
capital sentencing scheme produces inherently arbitrary death sentences for two reasons. First,
the alternative sentence of life without parole compels juries to speculate about specific future
security risks in prison, a task for which the jury is not competent and which does not bear on a
defendant’s moral culpability. Second, decades of evidence now confirm that predictions of
future dangerousness are inherently unreliable.
1.
The Alternative Sentence of Life Without Parole Undermines the
Doctrinal Basis for Permitting a Capital Jury to Base a
Sentencing Decision on its Assessment of a Defendant’s Future
Dangerousness.
When the Supreme Court decided Jurek v. Texas, 428 U.S. 262 (1976) (upholding
Texas’s use of future dangerousness in its sentencing scheme), and Barefoot v. Estelle, 463 U.S.
880 (1983) (permitting the admission of psychiatric testimony about future dangerousness),
capital defendants in Texas would become eligible for parole if sentenced to life in prison rather
than death. A “life sentence” was not truly a life sentence; defendants could, and did, gain
trial counsel was surprised when Kent Whitaker failed to do this. As Kent Whitaker points out, his “layman’s
understanding is that you should prepare your witnesses so you are not surprised. I have to keep coming back to this
point: What kind of judge would read this finding and think it shows that the attorney was doing his job?” Exh. ‘N’
(2011 Affidavit of Kent Whitaker).
68
release from confinement. Jurek and Barefoot, which sanctioned Texas’s unique system of
sentencing capital defendants to death based entirely on a prediction of their future
dangerousness, were predicated on this very fact.
This fact, however, is no longer true. Indeed, since Barefoot was decided, of the thirtyfive U.S. jurisdictions currently permitting the death penalty (thirty-four states and the federal
government), at least twenty-five, or nearly three-quarters, have introduced life without parole as
a sentence for capital-eligible murder. 10 Since 2005, when it enacted life without parole, Texas
has been included in this larger group. In other words, for the past six years – and at the time
10
See, Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as
amended in scattered sections of 18 U.S.C.); 1993 Ariz. Legis. Serv. ch. 153 (West) (codified as
amended at Ariz. Rev. Stat. Ann. § 13-751 (2011)); 2002 Colo. Sess. Laws. 1 (codified as
amended at Colo. Rev. Stat. § 18-1.3-1201 (2010)); 1985 Conn. Pub. Acts No. 366 (codified as
amended at Conn. Gen. Stat. §§ 53a-35b, -35c, -46a (2011)); 2002 Del. Laws. ch. 424 (codified
as amended at Del. Code. Ann. tit. 11, § 4209 (2011)); 1994 Fla. Laws. ch. 228 (codified as
amended at Fla. Stat. § 775.082 (2010)); 1993 Ga. Laws 1654 (codified as amended at scattered
sections of Ga. Code. Ann. tit. 17 (2010)); 2003 Idaho Sess. Laws ch. 19 (codified as amended at
Idaho Code Ann. § 19-2515 (2010)); 1993 Ind. Legis. Serv. P.L. 250 (codified as amended at
Ind. Code. § 30-50-2-3 (2010)); 2004 Kan. Sess. Laws ch. 102, repealed by 2010 Kan. Sess.
Laws ch. 136 (to be codified in July 2011) (preserving sentence of life without possibility of
parole for capital murder); 1998 Ky. Acts ch. 606 (codified at Ky. Rev. Stat. Ann. § 535.025
(West 2010)); 1987 Md. Laws 1048 (codified at Md. Code Ann., Crim. Law §§ 2-303, -304
(2010)); 1984 Mo. Laws S.B. 448 (codified as amended at Mo. Ann. Stat. § 565.020 (West
2010)); 1995 Mont. Laws. Ch. 482 (codified as amended at Mont. Code Ann. § 45-5-102
(2009)); 2002 Neb. Laws 3d Special Sess. L.B. 1 (codified as amended at Neb. Rev. Stat. § 28105 (2010), invalidated by State v. Thorpe, 783 N.W.2d 749 (Neb. 2010)); 1994 N.C. Sess. Laws
(1st Extra Sess.) ch. 21 (codified as amended at N.C. Gen. Stat. Ann. § 15A-2002 (West 2010));
1995 Ohio Laws File 50 (S.B. 2) (codified as amended at Ohio Rev. Code Ann. § 2929.03 (West
2011)); 1987 Okla. Sess. Law Serv. 96 (West) (codified as amended at Okla. Stat. Ann. tit. 21, §
701.9 (West 2011)); 1995 S.C. Acts 83 (1995) (codified as amended at S.C. Code Ann. §§ 16-320, 24-13-100 (2010)); 1993 Tenn. Pub. Acts ch. 473 (codified as amended at Tenn. Code Ann. §
39-13-204 (West 2011)); 2005 Tex. Sess. Law Serv. ch. 787 (West) (codified as amended at Tex.
Penal Code § 12.31 (West 2009)); 1992 Utah Laws ch. 142 (H.B. 73) (codified as amended at
Utah Code Ann. § 76-3-206 (West 2010); 1994 Va. Acts. 2d Special Sess. ch. 2 (codified at Va.
Code Ann. § 53.1-165.1 (West 2011)); 2001 Wyo. Sess. Laws ch. 96 (codified as amended at
Wyo. Stat. Ann. § 6-2-101 (West 2010)).
69
Mr. Whitaker was sentenced to death – the alternative to death in a capital trial was true life in
prison.
Only nine of the states that provide for true life sentences (including Texas) expressly
contemplate that the jury will make a finding of future dangerousness in determining whether a
capital defendant will live or die. 11 Like Texas, none of these jurisdictions had an available
sentence of life without parole when Jurek was decided. 12 Jurek and Barefoot were decided in a
context that presumed an offender’s possible release if he was not sentenced to death.
In addition to having been decided in a context where the potential punishments differed
from those currently available in Texas, both Jurek and Barefoot accepted a capital jury’s
prediction of a defendant’s future dangerousness because this practice was regarded as similar to
other predictions about a criminal defendant’s future conduct. As the Court put it:
The decision whether to admit a defendant to bail, for instance, must often turn on
a judge’s prediction of the defendant’s future conduct. Any sentencing authority
must predict a convicted person’s probable future conduct when it engages in the
process of determining what punishment to impose. For those sentenced to
prison, these same predictions must be made by parole authorities. The task that a
Texas jury must perform in answering the statutory question in issue is thus
11
Oregon and Texas require a finding of future dangerousness for a death sentence. See,
Or. Rev. Stat. § 163.150(b) (2009); Tex. Code Crim. Proc. Ann. art. 37.071 (West 2009). In
Virginia, a finding of future dangerousness is one of two possible prerequisites. See, Va. Code
Ann. § 19.2-264.4(c) (2010). In Idaho, Oklahoma, and Wyoming, future dangerousness is a
statutory aggravating factor. See, Idaho Code Ann. § 19-2515(9) (2010); Okla. Stat. Ann. tit. 21,
§ 701.12 (West 2011); Wyo. Stat. Ann. § 6-2-102(h). In Colorado, Maryland, and Washington,
the lack of future dangerousness is a statutory mitigating factor. See, Colo. Rev. Stat. § 18-1.31201(4)(k) (2010); Md. Code Ann., Crim. Law § 2-303(h)(2)(vii) (2010); Wash. Rev. Code §
10.95.070 (2010).
12
For the adoption of life without parole by Colorado, Idaho, Maryland, Oklahoma,
Texas, Virginia, and Wyoming, see, supra note 1. Oregon and Washington implemented life
without parole in 1977, one year after Jurek. See, Norris v. Bd. of Parole and Post-Prison
Supervision, 952 P.2d 1037, 1041 (Or. Ct. App. 1998) (explaining passage of statute authorizing
life without parole as sentence for aggravated murder); State v. Frampton, 627 P.2d 922, 928
(Wash. 1981) (describing sentence of life without parole as part of capital sentencing statute
passed in 1977).
70
basically no different from the task performed countless times each day
throughout the American system of criminal justice.
Barefoot, 463 U.S. at 897 (quoting Jurek, 428 U.S. at 275-76). The Court analogized the
prediction a capital jury had to make to other predictions involving how someone would behave
outside of prison. That is, in each of the instances identified by the Court in Barefoot, an
experienced professional evaluates a person’s potential dangerousness in society at large to
determine whether that person should be imprisoned.
The analogy on top of which the decision in Barefoot rested is no longer sound. Because
the typical alternative to a death sentence in Texas (and elsewhere) is life without parole, a lay
jury must now speculate about a defendant’s future dangerousness in prison to determine
whether he should be executed. Consequently, a capital jury’s task in speculating about future
dangerousness is no longer like others “performed countless times each day,” but is instead
highly unusual. Neither courts nor jurors are typically competent to evaluate security risks inside
prison walls.
Indeed, courts often acknowledge that they lack expertise in such matters,
deferring instead to prison administrators. See, e.g., Overton v. Bazzetta, 539 U.S. 126, 132
(2003); O’Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987); Turner v. Safley, 482 U.S. 78,
84-85 (1987); Taylor v. Johnson, 257 F.3d 470, 474 (5th Cir. 2001). It should go without saying
that insofar as courts are not competent to assess security risks in prison, juries are a fortiori not
competent to predict specific future security risks in prison “beyond a reasonable doubt.” Tex.
Code Crim. Proc. Ann. art. 37.071(2)(c) (West 2011). In short, because life without parole is
now the common alternative to a death sentence, prohibiting juries from speculating about future
71
dangerousness would no longer “call into question those other contexts in which predictions of
future behavior are constantly made.” Barefoot, 463 U.S. at 898. 13
Beyond the fact that Barefoot and Jurek, which upheld the Texas scheme of basing a
death sentence on a prediction of future dangerousness, were decided in the context of a statutory
scheme that is no longer in place, the requirement that juries predict specific future security risks
in prison produces arbitrary death sentences for three distinct reasons. First, because the issues
are so arcane and foreign to jurors, trial counsel, and even judges, the risk of error is
unacceptably high. Even seemingly minor mistakes by experienced witnesses can make the
critical difference between life and death. For example, in Estrada v. State, 313 S.W.3d 274
(Tex. Crim. App. 2010), a prison investigator erroneously testified that a defendant sentenced to
life rather than death would be eligible to move from G3 to G2 inmate classification status within
prison after ten years of incarceration. 14 Id., at 286. This testimony had enormous impact. As
the jury explained in a note to the trial judge, the decisive factor in its decision to sentence Mr.
Estrada to death was the possibility that the offender might eventually move to the lower level of
classification. Id. As it happened, however, that testimony was erroneous; Mr. Estrada would
never have been eligible for a less restrictive classification than G3. Id., at 287. A jury sentenced
13
Moreover, because future dangerousness predictions involve predictions about behavior
inside prison, capital sentencing proceedings are increasingly dominated by arcane testimony
addressing inmate classification, security procedures, and other minutiae of prison life foreign to
jurors if not judges. See, e.g., Coble v. State, 330 S.W.3d 253, 287-90 (Tex. Crim. App. 2010)
(describing extensive sentencing-phase testimony about prisoner classification system and prison
assault reporting mechanisms); Sparks v. State, 2010 WL 4132769, at *22-23 (Tex. Crim. App.
Oct. 20, 2010) (same); Espada v. State, 2008 WL 4809235, at *10 (Tex. Crim. App. Nov. 5,
2008) (same); Prystash v. State, 3 S.W.3d 522, 528 (Tex. Crim. App. 1999) (describing
hypothetical testimony applying prison classification system to defendant).
14
The differences between these classifications are: G3 inmates can only be housed in
dormitories within the main unit of a prison building, while G2 inmates can be housed in
physically separate dormitories; and G3 inmates are restricted from certain vocational training
depending on its location. See, Unit Classification Procedure (Revision to October 2003 Inmate
Classification Plan), Texas Department of Criminal Justice, July 2005, Attachment 2.00A.
72
a capital defendant to death because a prison official testifying at the trial made a technical error
about a single provision of the Texas Department of Criminal Justice’s inmate classification
scheme. The Estrada case demonstrates how basing a sentencing decision on a prediction of
future dangerousness inside prison creates an unacceptably high risk that a defendant will be
erroneously sentenced to death. This risk violates bedrock principles of Eighth Amendment
doctrine. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 117-18 (1982) (O’Connor, J.,
concurring) (noting that Eighth Amendment demands “extraordinary measures to ensure that the
prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly
possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake”)
(emphasis added). 15
Consequently, the scheme violates the constitutional requirement that
capital sentencing proceedings be more reliable than others because “death is qualitatively
different” from other punishments. Woodson, 428 U.S. at 305; see also Lockett v. Ohio, 438 U.S.
586, 604 (1978).
Second, even if the jury had perfect knowledge and special competence in these matters,
it is hard for anyone to predict future dangerousness in a high-security prison environment based
on a defendant’s experiences outside prison. The psychiatric community widely acknowledges
that “predictions of violence concerning settings very different from those in which violence has
occurred in the past will be highly subject to error.” Thomas R. Litwack & Louis B. Schlesinger,
Assessing and Predicting Violence: Research, Law and Applications, in Handbook of Forensic
Psychology 205, 214 (Irvin B. Weiner & Allen K. Hess eds., 1987). Risk factors for violence in
prison differ from risk factors for recidivist violence in wider society. Past violence and the
severity of the offense that put a person in prison do not correlate strongly with prison violence.
15
As is discussed further below, even if all testimony is accurate, the conclusions the jury
draws from it are inherently unreliable, so the risk of error remains unacceptably high.
73
See, Brief of Amicus Curiae American Psychological Association in Support of Appellant at 20,
United States v. Fields, 483 F.3d 313 (5th Cir. 2004) (No. 04-50393), available at
http://www.apa.org/about/offices/ogc/amicus/fields.pdf (citing Jack Alexander & James Austin,
Handbook for Evaluating Objective Prison Classifications 25 (Nat’l Inst. of Corrs. 1992)).
Indeed, “there is counter-intuitive evidence that inmates who have committed more serious
offenses in the community and thus face longer sentences have more favorable prison
adjustments.”
Mark D. Cunningham et al., An Actuarial Model for Assessment of Prison
Violence Risk Among Maximum Security Inmates, 12 Assessment 40, 42 (2005).
Violent
behavior outside of prison is an inadequate foundation even for actuarial predictions of violence
in prison. It is surely not reliable enough to serve as the basis for a judgment beyond a
reasonable doubt that a particular defendant will probably commit future acts of violence in
prison.
Third, even if a jury’s speculation about specific future security risks in prison were
reliable, it would fail the constitutional requirement that a death sentence reflect the particular
defendant’s moral culpability. Defendants may be sentenced to death if and only if they are
sufficiently morally culpable. See, Roper v. Simmons, 543 U.S. 551, 568 (2005) (only those with
“extreme culpability” eligible for capital punishment); Atkins v. Virginia, 536 U.S. 304, 316
(2002) (prohibiting execution of mentally retarded persons because they are “categorically less
culpable”).
This culpability must be determined by an individualized assessment of the
particular offender. Enmund v. Florida, 458 U.S. 782, 798 (1982); Lockett, 438 U.S. at 600.
Jury speculation about a defendant’s future dangerousness in prison, however, is often
more about the nature of prison than the nature of the defendant. In Estrada, for example, the
jury sentenced the defendant to death because it believed that he would become eligible for a less
74
restrictive inmate classification. The belief was wrong – but it would have been correct under a
previous version of the Texas Department of Criminal Justice’s inmate classification plan. See,
Estrada, 313 S.W.3d, at 287. Security risks in prison depend upon prison resources, conditions,
and management practices. None of these factors bears upon the defendant’s culpability for his
past acts. The defendant’s crime cannot be morally graver simply because the prison system has
not been successful in reducing inmate violence. If the life-or-death decision turns on prison
management techniques, the resulting sentence cannot be a “reasoned moral response to the
defendant’s background, character, and crime.” California v. Brown, 479 U.S. 538, 545 (1987)
(O’Connor, J., concurring).
2.
Evidence Now Confirms That Predictions of Future Dangerousness
are Inherently Unreliable.
The Jurek Court found that predicting future dangerousness, while “difficult,” was still
possible. Jurek, 428 U.S. at 274. The Barefoot holding that there was no constitutional bar to the
admission of psychiatric testimony on future dangerousness similarly relied on the Court’s
judgment that “[w]e are not persuaded that such testimony is almost entirely unreliable….”
Barefoot, 463 U.S. at 899.
In formulating these views, the Court depended upon “first
generation” evidence on the reliability of predictions of future dangerousness.
Cf. John
Monahan, The Prediction of Violent Behavior: Toward a Second Generation of Theory and
Policy, 141 Am. J. Psychiatry 10, 10 (1984). Now that hundreds of capital defendants have been
labeled future dangers by juries over the course of several decades, new evidence has emerged,
and that new evidence demonstrates unequivocally that these predictions are, in fact, “entirely
unreliable.”
75
An actuarial study of Texas inmates convicted of capital murder found that the expected
rates of violence would be very low for a prisoner convicted of capital murder serving a life
sentence with an average duration of forty years. The overall likelihood of inmate-on-inmate
homicide would be only 0.2 percent, and the likelihood of an aggravated assault on a correctional
officer would be only 1 percent. See, Jonathan R. Sorensen & Rocky L. Pilgrim, An Actuarial
Risk Assessment of Violence Posed by Capital Murder Defendants, 90 J. Crim. L. & Criminology
1251, 1261, 1264 (2000).
This data not only suggests that bona fide cases of future
dangerousness are infrequent but also that it is virtually impossible to predict future
dangerousness in this context with any degree of scientific accuracy. Because the “base rate” of
violence is low – few persons are incarcerated under those conditions, and they commit
relatively few acts of violence – it is difficult to predict any specific occurrence of violence, for it
is difficult to isolate the causal factors that produce violence in the first place. See, Brief of
Amicus Curiae American Psychological Association in Support of Appellant at 18-19,
United
States
v.
Fields,
483
F.3d
313
(5th
Cir.
2007),
available
at
http://www.apa.org/about/offices/ogc/amicus/fields.pdf.
Empirical research confirms that predictions of future dangerousness wrongly identify
non-dangerous defendants as dangerous. A recent study of a group of capital inmates predicted
to be future dangers demonstrated that none had committed homicide in prison, and only 5.2
percent had committed a serious assaultive act. The overwhelming majority had only minor
disciplinary infractions, and over 20 percent had none at all. See, John F. Edens et al.,
Predictions of Future Dangerousness in Capital Murder Trials: Is it Time to “Disinvent the
Wheel?,” 29 Law & Hum. Behav. 55, 62-63 (2005). In Barefoot, the Supreme Court reached the
decision to permit the jury to predict future dangerousness because it was not persuaded that
76
such predictions are “entirely unreliable”; indeed, the Justices seem to have believed that such
predictions are accurate approximately one-third of the time. See, Barefoot, 463 U.S. at 900-01
& n.7. However, studies of Texas death row inmates’ behavior conducted since Barefoot was
decided entirely undermine the factual predicate of Barefoot and reveal that predictions of future
dangerousness are wrong in more than 95 percent of cases. See, Jessica L. Roberts, Note, Futures
Past: Institutionalizing the Re-Examination of Future Dangerousness in Texas Prior to
Execution, 11 Tex. J. C.L. & C.R. 101, 121 (2005). 16
One reason why jury “predictions” of future dangerousness produce so many false
positives is that they may simply be proxies for jurors’ guesswork about a defendant’s release
16
For additional scholarship since Barefoot confirming the overwhelming consensus that
predictions of future dangerous are grossly inaccurate and produce frequent false positives, see
Mark David Albertson, Can Violence Be Predicted? Future Dangerousness: The Testimony of
Experts in Capital Cases, 3 Crim. Just., Winter 1989, at 18 (describing consensus among experts
that predictions are mostly inaccurate); William W. Berry III, Ending Death by Dangerousness:
A Path to the De Facto Abolition of the Death Penalty, 52 Ariz. L. Rev. 889, 907 (2010) (“The
incontrovertible scientific evidence demonstrates that future dangerousness determinations are, at
best, wildly speculative.”); Stephen P. Garvey, "As the Gentle Rain from Heaven": Mercy in
Capital Sentencing, 81 Cornell L. Rev. 989, 1031 (1996) (“Unfortunately, our power to predict
future dangerousness seems on a par with our power to predict next month's weather.”); Steven
G. Gey, Justice Scalia's Death Penalty, 20 Fla. St. L. Rev. 67, 118 (1992) (“No jury has the
power to ascertain with 100 percent certainty the future actions of the defendant, yet Texas
requires the jury to do just that.”); Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors:
The Paradox of Today's Arbitrary and Mandatory Capital Punishment Scheme, 6 Wm. & Mary
Bill Rts. J. 345, 371-72 (1998) (“The use of the ‘future danger’ aggravating factor as a tool for
determining who receives the death penalty is highly suspect. … Even ignoring the potential
unreliability of testimony from mental health professionals, every first-degree murder defendant
reasonably could be found to be a future danger because he has been convicted of murder.”);
Grant Morris, Defining Dangerousness: Risking a Dangerous Definition, 10 J. Contemp. Legal
Issues 61, 85 (1999) (explaining mental health professionals’ “grave doubt” about predictions of
dangerousness); Irene Merker Rosenberg, Yale L. Rosenberg & Bentzion S. Turin, Return of the
Stubborn and Rebellious Son: An Independent Sequel on the Prediction of Future Criminality, 37
Brandeis L.J. 511, 519 (1998-99) (“a substantial body of literature suggests that prophecy of this
sort is a very speculative business, resulting in massive inclusion of persons who would not, in
fact, engage in the predicted anti-social behavior”); Christopher Slobogin, Dangerousness and
Expertise, 133 U. Pa. L. Rev. 97, 110-11 (1984) (describing false positive rates as high as 92
percent).
77
from prison. A study of death penalty jurors has examined the relationship between jurors’
beliefs about the available alternatives to the death penalty and their beliefs about the defendant’s
future dangerousness. See, William J. Bowers & Benjamin D. Steiner, Death by Default: An
Empirical Demonstration of False and Forced Choices in Capital Sentencing, 77 Tex. L. Rev.
605, 659-70 (1999). Jurors who believed that a defendant might be released from prison in the
near future were no more likely to report that the prosecution introduced evidence that the
defendant was a future danger, but more likely to find that the defendant was a future danger. Id.,
at 669. In other words, jurors with earlier estimates of a defendant’s release from prison were
predisposed to “believe the evidence ‘proved’” the defendant’s future dangerousness. Id.
The problem is, however, that these jurors’ estimates of the defendant’s possible release
date were factually incorrect. “Hence, jurors who wrongly believe that such an offender would
be released in less than ten years may well see him as a greater potential threat to society, as
more ‘dangerous,’ than those who believe release will come only after twenty or more years.”
Id., at 667.
Requiring juries to predict future dangerousness, then, may allow “mistaken
estimates of the defendant’s early parole or release from prison [to] be bootstrapped into capital
sentencing by being surreptitiously incorporated into the … judgment of future dangerousness.”
Id., at 667-68.
The jury’s consideration of future dangerousness is not based on reliable
information about the particular defendant, but instead serves as a conduit for jurors’ prior
assumptions – often inaccurate – about the defendant’s possible release.
In any case, the most relevant question is not whether any defendant, or even some nontrivial percentage of defendants, labeled a future danger later committed an act of violence. The
reliability of a prediction cannot be ascertained by asking whether it is “always wrong.”
Barefoot, 463 U.S. at 901. After all, if a jury randomly picked defendants’ names out of a hat
78
and then “found” that the selected defendants were future dangers, the “prediction” would
ultimately appear to be “right” in some cases. But the prediction itself would have no value and
would be considered inherently unreliable. It would just be a random guess – the very definition
of arbitrariness. Cf. Nixon v. United States, 506 U.S. 224, 253-54 (1993) (Souter, J., concurring)
(observing that making a decision on the basis of a coin flip would warrant judicial intervention).
The crucial question, therefore, is whether defendants labeled future dangers actually
commit future acts of violence at a significantly higher rate than defendants not labeled future
dangers.
Comparing these two classes of defendants is the only way to show that the
“prediction” offers any more information than an arbitrary guess. The Constitution demands
heightened reliability in capital sentencing proceedings. See, Woodson v. North Carolina, 428
U.S. 280, 305 (1976). If a prediction is to form the basis for a death sentence, it must be more
accurate than random speculation.
Relying on mere guesswork violates the Constitution’s
command that “the death penalty be inflicted evenhandedly, in accordance with reason and
objective standards, rather than by whim, caprice, or prejudice.” Callins v. Collins, 510 U.S.
1141, 1144 (1994) (Blackmun, J., dissenting from the denial of cert.).
Comparative data show that prisoners labeled future dangers turn out to be no more
dangerous than prisoners not labeled future dangers. One study compared the behavior of former
death row prisoners who were once judged to be future dangers against the behavior of prisoners
convicted of capital murder who received life sentences. When both groups of offenders were
among the general prison population, the supposed future dangers “were not a threat to the
institutional order” and indeed had a lower rate of assaultive institutional misconduct. In fact,
their rate of violent misconduct in prison was lower than the rate among the general prison
population as a whole. See, James W. Marquart, Sheldon Ekland-Olson & Jonathan Sorensen,
79
Gazing into the Crystal Ball: Can Jurors Accurately Predict Dangerousness in Capital Cases?,
23 Law & Soc’y Rev. 449, 464 (1989). No evidence shows a significant correlation between
predictions of future dangerousness and higher rates of actual future dangerousness.
The inherent unreliability of predictions of future dangerousness may explain why all
other judgments of future dangerousness in the legal system are routinely reviewed for continued
accuracy. Barefoot emphasized that psychiatric testimony can be used in other contexts to
determine whether a person poses a threat to others. See, Barefoot, 463 U.S. at 898. As a result,
excluding it from death penalty proceedings would be like “disinvent[ing] the wheel.” Id., at 896.
Yet capital sentencing is the only context in which a prediction of future dangerousness is
irrevocable.
In Barefoot, the Court cited Addington v. Texas, 441 U.S. 418 (1979), to note that
psychiatrists may evaluate a person’s future dangerousness in the context of civil commitment
proceedings. Barefoot, 463 U.S. at 898. Addington required a clear-and-convincing-evidence
standard for civil commitment proceedings and endorsed expert psychiatric interpretation to
evaluate whether a mentally-ill person is dangerous. Addington, 441 U.S. at 429. Yet Addington
also observed:
There is a serious question as to whether a state could ever prove beyond a
reasonable doubt that an individual is both mentally ill and likely to be dangerous.
… The subtleties and nuances of psychiatric diagnosis render certainties virtually
beyond reach in most situations. The reasonable-doubt standard of criminal law
functions in its realm because there the standard is addressed to specific,
knowable facts.
Id., at 429-30.
Addington clearly identified the incompatibility of predicting future
dangerousness with the need for conclusive proof of “specific, knowable facts” in punishing
criminal conduct. This case, cited to support Barefoot’s observation that future dangerousness
can be evaluated, actually supports the proposition that it cannot be evaluated with sufficient
80
accuracy to enable its proof beyond a reasonable doubt. This is, of course, the standard of proof
required by the Texas capital sentencing scheme. Tex. Code Crim. Proc. Ann. art. 37.071(2)(c)
(West 2011).
Since Jurek and Barefoot were decided, moreover, many states and the federal
government have passed statutes, known as sexually violent predator acts (SVPAs), to expand
civil commitment to violent sex offenders.
These statutes require regular reassessment of
committed persons’ status, 17 further demonstrating that predictions of future dangerousness must
be continually revisited if they are to be used at all. In upholding the constitutionality of
Kansas’s SVPA, the Court noted:
“The maximum amount of time an individual can be
incapacitated pursuant to a single judicial proceeding is one year. If Kansas seeks to continue
the detention beyond that year, a court must once again determine beyond a reasonable doubt
that the detainee satisfies the same standards as required for the initial confinement,” including a
prediction of future dangerousness. Kansas v. Hendricks, 521 U.S. 346, 364 (1997). Texas’s
SVPA similarly requires a biennial examination of committed persons and a biennial review of
the prediction of future dangerousness by a judge. Tex. Health & Safety Code Ann. §§ 841.101,
841.102 (West 2011).
The legal significance of periodic review is that these statutes are civil rather than
punitive, for they only aim to confine a person until “his mental abnormality no longer causes
him to be a threat to others.” Hendricks, 521 U.S. at 363. But if periodic review is required to
determine whether a person is still “a threat to others,” then the initial prediction of future
17
See, e.g., Ariz. Rev. Stat. Ann. § 36-3708 (2011); Cal. Welf. & Inst. Code. § 6605
(West 2010); Fla. Stat. § 394.918 (2010); 725 Ill. Comp. Stat. Ann. 207/55 (West 2011); 42 Pa.
Cons. Stat. Ann. § 6404 (West 2011). Civil commitment statutes for mentally-ill persons who
pose a danger to themselves or others similarly provide for periodic review. See, e.g., Tex.
Health & Safety Code Ann. § 574.066 (West 2011).
81
dangerousness is necessarily inadequate beyond its initial shelf life of one or two years. SVPAs
acknowledge on their face that a single prediction of future dangerousness is not reliable enough
to justify long-term detention.
This widespread acknowledgment of the inadequacy of
predictions of future dangerousness was not available when Jurek and Barefoot were decided, as
Washington passed the Nation’s first SVPA in 1990. See, Nathan James et al., Cong. Research
Serv., RL34068, Civil Commitment of Sexually Dangerous Persons 1 (2007).
Indeed, the Texas statute, which is unique in not actually detaining committed persons,
acknowledges that a single prediction of future dangerousness is not even reliable enough to
serve as the basis for more than two years of outpatient treatment. See, Tex. Health & Safety
Code Ann. § 841.081; In re Commitment of Fisher, 164 S.W.3d 637, 642 (Tex. 2005). A
fortiori, then, a single prediction of future dangerousness cannot be reliable enough to serve as
the basis for a death sentence.
In sum, while the first-generation evidence did not persuade the Jurek or Barefoot Court
that predictions of future dangerousness are inherently unreliable, new evidence indisputably
confirms that they are. Death sentences that rely on such predictions, therefore, condemn
defendants to death on the basis of meritless random guesses. A death sentence based upon a
“prediction” of future dangerousness is no less arbitrary than a death sentence based on random
lottery – or, for that matter, a mandatory death sentence. Cf. Woodson v. North Carolina, 428
U.S. 280, 303 (1976). It is particularly problematic that the legal system’s only irrevocable
judgment of future dangerousness is found in capital sentencing proceedings. The inability to
reassess unreliable predictions of future dangerousness further undermines the accuracy of any
decision based on them.
82
B.
Mr. Whitaker’s Death Sentence, Imposed After the Jury Predicted He
Would be a Future Danger, Violates the Eighth and Fourteenth Amendments
to the United States Constitution Because it is Excessive and
Disproportionate.
Excessive punishments are cruel and unusual and are, therefore, prohibited by the
Constitution. See, Gregg v. Georgia, 428 U.S. 153, 173 (1976); Furman v. Georgia, 408 U.S.
238, 279 (1972) (Brennan, J., concurring). A punishment is unconstitutionally excessive if it
does not contribute to the goals of punishment – retribution and deterrence – and is thus a
needless infliction of pain and suffering or is grossly disproportionate to the severity of the
crime. Coker v. Georgia, 433 U.S. 584, 592 (1976); Gregg, 428 U.S. at 173, 183 (1976). Mr.
Whitaker’s death sentence is excessive because there is a clear national consensus that the type
of crime Mr. Whitaker committed does not warrant the death penalty and when speculation about
future dangerousness determines which defendants are sentenced to death, the resulting sentence
fails to serve the purpose of either retribution or deterrence.
1.
There is a Clear National Consensus That the Specific Type of Crime
Mr. Whitaker Committed Does Not Warrant the Death Penalty.
The national consensus is that an individual who has killed at least one parent is not
deserving of the death penalty. Because the Eighth Amendment derives its “meaning from the
evolving standards of decency that mark the progress of a maturing society,” a punishment’s
excessiveness must be evaluated against objective indicia of public attitudes. Trop v. Dulles, 356
U.S. 86, 101 (1958).
Objective criteria, such as “public attitudes concerning a particular
sentence—history and precedent, legislative attitudes, and the response of juries reflected in their
sentencing decisions” must be considered in determining whether a punishment is excessive.
Coker v. Georgia, 433 U.S. 584, 592 (1977); see, also, Furman, 408 U.S. at 277 (Brennan, J.,
concurring) (“Rejection by society, of course, is a strong indication that a severe punishment
83
does not comport with human dignity.”). Statistics regarding the frequency with which juries
return a sentence of death reveal societal attitudes concerning whether a particular crime or a
particular class of offenders is deserving of the death penalty. See, Kennedy v. Louisiana, 554
U.S. 407, 433 (2008). In Texas, the treatment of offenders similarly situated to Mr. Whitaker
reveals a state-wide consensus that such defendants are not deserving of the death penalty.
In sentencing him to death, Mr. Whitaker’s jury unanimously found that Mr. Whitaker
“would commit criminal acts of violence that would constitute a continuing threat to society.”
Tex. Code Crim. Proc. Ann. art. 37.071 (West 2011). The cases of similarly-situated defendants
reveal that judges, juries, and prosecutors do not consider defendants who commit murders
similar to the one for which Mr. Whitaker was convicted to be deserving of the harshest penalty.
Undersigned counsel conducted a survey of all fifty states, dating back to 1975, and located 114
decided cases in which an individual murdered at least one parent. See, Exh. ‘O’.
Of the twenty-two Texas cases (not including Whitaker), a jury imposed a death sentence
in only five. See, Exh. ‘O’. Justice Brennan likened this occurrence to a “lottery system” and
noted that “[w]hen the punishment of death is inflicted in a trivial number of cases in which it is
legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily.”
Furman, 408 U.S. at 293 (Brennan, J., concurring). The facts surrounding the 2003 murders of
Rick and Suzanna Wamsley are remarkably similar to the facts in Mr. Whitaker’s case. See,
Wamsley v. State, No. 2-06-089, 2008 WL 706610 (Tex. App.—Ft. Worth, Mar. 13, 2008)
(mem. op.). In that case, Fort Worth prosecutors sought death against Andrew Wamsley and two
others for the brutal stabbing and shooting of Wamsley’s parents. Id., at *1. Wamsley and the
two female codefendants met on several occasions at a restaurant to plot the murders. See,
Glenna Whitley & Andrea Grimes, Family Plot, Dallas Observer News, July 15, 2004, available
84
at http://www.dallasobserver.com/2004-07-15/news/family-plot/. The jury convicted Wamsley
of capital murder, but the jury did not find that Wamsley was a future danger and sentenced him
to life. See, Wamsley, 2008 WL 706610, at *1. Wamsley’s case illustrates the trend in Texas
toward finding this class of offenders not to be a future danger and not deserving of a death
sentence. Juries realize that individuals who kill their parents are not a future danger because
they have no motivation or purpose to harm any other group of persons, inside or outside of
prison. The Texas Court of Criminal Appeals recently held similarly regarding parents who kill
their children. See, Berry v. Texas, 233 S.W.3d 847, 863 n.5 (“Children who kill their parents
cannot commit that offense again . . .”).
The data also reveals that prosecutors in Texas do not believe that defendants who kill a
parent are a continuing threat to society and, thus, deserving of the death penalty. In the Texas
cases in which it is known whether the prosecutor sought death, the prosecution did not seek
death in the majority of cases. See, Exh. ‘O’. This data further demonstrates that Mr. Whitaker’s
death sentence is disproportionate and arbitrary. For example, twenty-five year old Justin Smith
of Matagorda County was charged with capital murder after he killed both of his parents and
wrapped their dead bodies in plastic. See, Anne Marie Kilday, Man Suspected of Shooting
Parents
Captured
at
Ski
Resort,
Houston
Chronicle,
January
8,
2005,
http://www.chron.com/disp/story.mpl/metropolitan/2983947.html. After the murders, Mr. Smith
was seen at a bar playing pool with his father’s prized cue, then telling a friend that his father
would not find out. Id. Mr. Smith also lied to authorities about the whereabouts of his parents,
then fled the county with his wife and child. Id. After Mr. Smith was finally arrested, he
expressed remorse about the killings and ultimately pled guilty to capital murder with an agreed
life sentence. Id. Though Mr. Smith had a prior juvenile record that included charges of burglary
85
and forgery, the prosecutor ultimately offered a plea deal to spare the family further pain and
suffering. See, Smith Pleads Guilty to Murder, Bay City Trib., July 8, 2006, available at
http://groups.yahoo.com/group/Texasdeathpenaltynews/message/3837. Mr. Smith’s case is quite
similar to Mr. Whitaker’s case – both defendants were young men who fled after the murders for
which they were convicted, both expressed remorse, both had prior juvenile records involving
non-violent offenses, and in both cases, the family expressed a desire to spare the life of the
defendant despite the pain he caused. Outside of Texas, the results are even more telling. In the
ninety-two non-Texas cases identified by undersigned counsel, only five defendants were
sentenced to death. See, Exh. ‘O’. In the case of Blaine Ross of Florida, the court recently
granted a retrial because police interrogators failed to timely advise Mr. Ross of his Miranda
rights. See, Todd Ruger, New Trial for Man Convicted of Killing Parents, Herald-Trib., May 27,
2010, available at http://www.heraldtribune.com/article/20100527/breaking/100529747.
Eric
Hanson of Illinois was sentenced to death in 2005 for killing four people, including both his
parents. Because Mr. Hanson was convicted in Illinois where the Governor recently abolished
the death penalty, his death sentence was commuted to life without parole on July 1 of this year.
See, Ariane De Vogue & Barbara Pinto, Illinois Abolishes the Death Penalty; 16th State to End
Executions, ABCNews.com, Mar. 9, 2011, http://abcnews.go.com/Politics/illinois-16th-stateabolish-death-penalty/story?id=13095912. Deondre Staten was sentenced to death in California
for killing both of his parents. People v. Staten, 24 Cal. 4th 434 (Cal. 2000). Of the five nonTexas, death-sentenced defendants located by undersigned counsel, Mr. Staten’s sentence is the
only one that has been upheld.
The data reveals that in California prosecutors and juries overwhelmingly favor life
imprisonment over the death penalty for offenders who kill their parents. For example, in the
86
case of Lyle and Erik Menendez, both brothers were given life sentences for the 1989 murders of
their parents. See, Menendez Brothers Sentenced to Life in Prison, N.Y. Times, July 3, 1996,
available
at
http://www.nytimes.com/1996/07/03/us/menendez-brothers-sentenced-to-life-in-
prison.html. The prosecution urged the jury to impose death sentences based on the brutal facts
of the crime and the brothers’ casual spending spree with their inheritance, but the jury sentenced
them to life imprisonment rather than to death. Id. In 1995, Dana Ewell and Joel Radovcich
were convicted in California of murdering Mr. Ewell’s parents and sister. See, Son, Friend
Convicted
of
Killing
Parents,
Sister,
L.A.
Times,
May
13,
1998,
available
at
http://articles.latimes.com/1998/may/13/news/mn-49271. Prosecutors argued that the murders
were motivated by Mr. Ewell’s desire to inherit the family’s fortune. Id. The jury in that case
deadlocked on punishment, despite evidence that Ewell and Radovcich carefully plotted to kill
Ewell’s entire family for an eight million dollar inheritance. See, People v. Ewell, No. F0303191,
2004 WL 944479, at *1, 20 (Cal. Ct. App. May 4, 2004). After the jury deadlocked, the
prosecutor decided to forego a retrial of the penalty phase, and Mr. Ewell was sentenced to three
life sentences without the possibility of parole. Id.
California juries are not alone in regularly choosing not to sentence defendants similarly
situated to Mr. Whitaker to death. In 1991, Matthew Heikkila brutally murdered both parents
with a sawed-off shotgun and boasted about wanting to kill his girlfriend if he had more bullets.
See, W. Jacob Perry, A Horror That Shocked Bernards Township, Bernardsville News, Jan. 28,
2011,
http://newjerseyhills.com/bernardsville_news/news/article_f9d972cc-295f-11e0-b242-
001cc4c002e0.html. Prosecutors presented evidence of Mr. Heikkila’s various run-ins with the
law and chilling threats directed toward his well-respected parents. Id. The New Jersey jury
87
found Mr. Heikkila guilty of murdering his parents but chose to spare his life though the
prosecutor sought death. Id.
Prosecutors regularly decide not to seek death in cases that involve precisely the type of
crime committed by Mr. Whitaker. See, Exh. ‘O’. For example, Oregon prosecutors decided not
to seek the death penalty in the 1997 murders of Henry and Mercedes Niiranen. See, Tara
Burghart, Murderer Yearns for Birth Parents, The Seattle Times, Mar. 19, 2000,
http://community.seattletimes.nwsource.com/archive/?date=20000319&slug=4010728. Instead,
Patrick Niiranen, their adoptive son, received a life sentence for pleading guilty to two counts of
aggravated murder and burglary. Id. In Connecticut, Patrick Campbell was not charged with a
capital felony for beating his adoptive parents to death with a sledgehammer, then burning their
bodies. See, State v. Campbell, 617 A.2d 889, 892 (Conn. 1992).
The data reveals a national consensus that offenders who kill at least one parent are not a
continuing threat to society deserving of the death penalty. Because so few individuals sit on
death row for these types of crimes, the death penalty is an excessive punishment in these cases.
2.
When Future Dangerousness Determines Whether a Defendant Lives
or Dies, the Resulting Death Sentence Cannot Serve the Purpose of
Either Retribution or Deterrence and Is, Therefore, Excessive.
“The death penalty is said to serve two principal social purposes: retribution and the
deterrence of capital crimes by prospective offenders.” Gregg v. Georgia, 428 U.S. 153, 183
(1976). Unless applying the death penalty “measurably contributes to one or both of these goals,
it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and
hence an unconstitutional punishment.” Enmund v. Florida, 485 U.S. 782, 798 (1982) (quoting
Coker v. Georgia, 433 U.S. 584, 592 (1977)).
88
The jury must decide that a defendant poses a future danger to sentence a person
convicted of capital murder to death. See, Texas Code Crim. Proc. Ann. art. 37.071 (West 2011).
When future dangerousness determines whether a defendant lives or dies, the resulting death
sentence primarily serves the purpose of incapacitation, not retribution or deterrence.
First, by definition, basing a punishment on future dangerousness cannot serve the
purpose of retribution. Retribution expresses “society’s moral outrage at particularly offensive
conduct.” Gregg, 428 U.S. at 183. It is the belief that a wrongdoer deserves to suffer for past
acts. It is inherently unrelated to a person’s future conduct. There can be no retribution for
future dangerousness.
Second, a punishment based upon future dangerousness does not deter. The very idea of
predicting future dangerousness assumes that some people are so inveterately dangerous that
they will necessarily commit violence even in a high-security prison environment—that the only
way to prevent them from engaging in future violence is to kill them. This is, in fact, precisely
what the State and its witnesses routinely tell sentencing juries. See, e.g., Berry v. State, 233
S.W.3d 847, 863 (Tex. Crim. App. 2007) (prosecutor stating “Some people are just evil”);
Battaglia v. State, 2005 WL 1208949, at *4 (Tex. Crim. App. May 18, 2005) (psychiatrist
testifying that defendant’s conscience would not stop him from committing future crimes); Cook
v. State, 821 S.W.2d 600, 602 (Tex. Crim. App. 1991) (prosecutor stating “Dr. Grigson told you
that the man was impossible to rehabilitate”). Prospective offenders are unlikely to be deterred
by a punishment they cannot receive. This is why deterring “capital crimes” – not deterring all
crimes through some generalized expression of toughness – is a possible purpose of the death
penalty. Gregg, 428 U.S. at 183. The future dangerousness requirement, if taken seriously,
means that only inveterately dangerous persons can get the death penalty. If only inveterately
89
dangerous persons can get the death penalty, then inveterately dangerous persons are the only
prospective offenders who might be deterred by it.
But a person is inveterately dangerous precisely because he cannot be deterred. A
deterrable person cannot be deemed a future danger beyond a reasonable doubt because, by
definition, any threat he may pose could be neutralized by appropriate incentives. Consequently,
the future dangerousness requirement – if it were possible to implement with accuracy – would
limit the death penalty to non-deterrable persons. Because punishments deter persons who could
possibly receive them, a punishment reserved for non-deterrable offenders will deter no one.
Consequently, where a finding of future dangerousness is the basis for the death penalty,
deterrence cannot be its purpose.
Because basing a death sentence on future dangerousness serves the purpose of neither
retribution nor deterrence, incapacitation is the only penological interest it can advance. But
“incapacitation has never been embraced as a sufficient justification for the death penalty.”
Spaziano v. Florida, 468 U.S. 447, 461-62 (1984). If incapacitation alone could justify the death
penalty, then “mandatory death penalty statutes would be constitutional, and, as we have held,
they are not.” Id., at 478 n.19 (Stevens, J., concurring in part and dissenting in part). Indeed, if
incapacitation could even be the primary justification for the death penalty, there would be no
absolute bar to the execution of minors and mentally retarded persons. These persons may not
be executed because they are less morally culpable for their crimes, see Roper v. Simmons, 543
U.S. 551, 567 (2005); Atkins v. Virginia, 536 U.S. 304, 306 (2002), but their diminished
culpability does not necessarily bear on the need to incapacitate them. Even if a mentally
retarded offender could be predicted with total certainty to be extremely dangerous in prison, the
Constitution would prevent Texas from executing him. Incapacitation, therefore, cannot be the
90
death penalty’s primary aim. Yet it is the primary aim when future dangerousness is the
deciding factor between life and death.
Punishments based on future dangerousness are
disproportionate in all circumstances to the underlying offense because they fail the
Constitution’s requirement that they measurably serve the purpose of retribution or deterrence.
C.
Because Mr. Whitaker Poses no Danger in a Prison Environment, the Jury’s
Determination of Future Dangerousness is Unreliable and False, and the
Resulting Death Sentence Violates the Constitution.
Mr. Whitaker has committed no violent acts while incarcerated.
His impeccable
disciplinary record demonstrates that he poses no threat to guards or fellow inmates. The jury’s
prediction that he posed a future danger has been proven to be inaccurate.
The punishment that depends upon this inaccurate prediction is not the reliable, reasoned
determination of culpability that the Constitution demands. Because Mr. Whitaker’s sentence is
based on a factual inaccuracy, it should be vacated. In Johnson v. Mississippi, 486 U.S. 578
(1988), the jury found an aggravating circumstance based on a defendant’s prior conviction;
when that conviction was reversed after the death sentence had been imposed, the Court vacated
the sentence. In Johnson, later developments revealed that the death sentence was unreliable and
arbitrary because it was “predicated, in part, on a … judgment that is not valid now, and was not
valid when it was entered….” Id., at 585 n.6. Mr. Whitaker’s sentence is also predicated on an
assessment that has been proven invalid.
1.
The Statements of Those Who Knew Mr. Whitaker While He Was in
Mexico Demonstrate That He Is Not a Future Danger.
Mr. Whitaker also demonstrated shortly after his offense that he was fully capable of
living non-violently and compassionately in society at large. Residing in Cerralvo, Mexico, Mr.
91
Whitaker developed a loving relationship with the Salinas family, whom he met by chance. Mr.
Whitaker lived peaceably and was a valued member of the local community.
The Salinas family knew Mr. Whitaker as “Rury.” See, Exh. ‘P’ (Affidavit of Silvia Edith
Salazar Toscano), at 4; Exh. ‘Q’ (Affidavit of Ubaldo Salinas Muñoz), at 4. Mr. Whitaker
worked in a furniture store owned by the Salinas family. See, Exh. ‘P’, at 5-8; Exh. ‘Q’, at 11.
The Salinas family knew Mr. Whitaker to be a dedicated worker who was always willing to put
in extra hours if needed. See, Exh. ‘P’, at 6-7; Exh. ‘Q’, at 12. The Salinas family, including the
usually untrusting Homero Salinas, grew to trust and love Mr. Whitaker like he was a member of
their family. See, Exh. ‘P’, at 9-10; Exh. ‘Q’, at 13. Store-owner Homero Salinas never trusted
any of the workers in his furniture store to the degree he did Mr. Whitaker and allowed him to do
work usually only entrusted to family members. Id. Mr. Salinas trusted Whitaker with all aspects
of the furniture store including taking payments and running the store by himself. See, Exh. ‘P’,
at 8; Exh. ‘Q’, at 14.
Mr. Whitaker became much more to the Salinas family than just an employee at their
furniture store. He was a close friend who often shared dinner with and spent the night at the
family’s home. See, Exh. ‘P’, at 10; Exh. ‘Q’, at 21, 25. He shared in the family’s Christmas
celebration. See, Exh. ‘P’, at 13. He dated Homero Salinas’s daughter, Sindy, and the two would
often attend mass together. See, Exh. ‘P’, at 12. Sindy’s brother, Ubaldo, recalled a time when
she was sick and Mr. Whitaker cared for her. See, Exh. ‘Q’, at 33. Whitaker would often babysit
the younger Salinas children. See, Exh. ‘P’, at 14. The family felt that Thomas was a member of
their family. See, Exh. ‘P’, at 15.
After learning that Mr. Whitaker had been convicted of capital murder, they could not
believe it was the same person that they had grown to know and love. See, Exh. ‘P’, at 24; Exh.
92
‘Q’, at 18, 22, 36. Even after being convicted, were Mr. Whitaker allowed to return to Mexico
today, the Salinas family would again welcome him into their house as a member of their family.
See, Exh. ‘P’, at 22.
2.
His Impeccable Record While Incarcerated Both Before Trial and at
the Polunsky Unit Demonstrates that Mr. Whitaker is Not a Future
Danger.
While awaiting trial, Mr. Whitaker spent time in several detention facilities without
incident. Mr. Whitaker lived in general population dormitories with low-level offenders, without
incident. He worked in a kitchen with other inmates, behaving irreproachably even as he had
access to potentially dangerous equipment. He was one of a select few inmates who cleaned one
facility’s administrative offices. He was routinely shuttled from one facility to another with
large groups of inmates because of renovations being done to the Fort Bend County Jail. Even
after being convicted of capital murder, while waiting to be transported to a TDCJ facility, Mr.
Whitaker was housed with the general population at the Fort Bend County Jail.
If jail
administrators believed that Mr. Whitaker posed any serious threat while incarcerated, he would
have been treated differently.
In nearly four-and-a-half years on death row, Mr. Whitaker has similarly posed no
danger. When inmates in the Texas Department of Criminal Justice have to be made to do
something involuntarily because they will not obey a command, use of force measures must be
taken. Correctional officers have never had to use force to get Mr. Whitaker to comply with one
of their orders the entire time that he has been incarcerated at the Polunsky Unit. See, Exh. ‘R’.
According to correctional officers currently employed at the Polunsky Unit on death row, Mr.
Whitaker is completely cooperative and always follows orders. See, Exh. ‘S’ (Affidavit off Jack
Holbrook) at 4; Exh. ‘T’ (Affidavit off Paul Hughes)
Holbrook),
Hughes), at 4. The correctional officers stated that
93
not only have they never had any problems with Mr. Whitaker, they know of no correctional
officers who have. See, Exh. ‘S’, at 4-5; Exh. ‘T’, at 4. A disciplinary report and hearing record
is generated at the Polunsky Unit any time any rule is violated and the violation cannot be
resolved informally. See, Tex. Dep’t of Criminal Justice, Disciplinary Rules and Procedures for
Offenders 1-2 (Corr. Inst. Div. 2010), available at http://www.tdcj.state.tx.us/publications/cid/
Disciplinary_Rules_and_Procedures_for_Offenders_April_2010.pdf.
Mr.
Whitaker’s
disciplinary records contain only four of these reports for the entire period that he has been
incarcerated at the Polunsky Unit and none are for violent offenses. See, Exh. ‘U’.
His
classification history records which record that Mr. Whitaker has been on level 1 for almost the
entire time that he has been incarcerated at the Polunsky Unit, are further evidence of his
cooperative and nonviolent behavior. See, Exh. ‘V’.
The Salinas family observed that Thomas Whitaker worked to improve himself during his
time in Mexico by learning Spanish and taking guitar lessons. See, Exh. ‘Q’, at 5, 17. During his
time at Polunsky, Mr. Whitaker continues to devote his time and energy to self-improvement.
He is taking classes by correspondence and is on track to earn a bachelor’s degree from Adams
State College. See, Exh. ‘W’. Mr. Whitaker is planning to begin taking classes by mail from the
Dominguez Hills campus of California State University in the fall of 2012 in pursuit of a Masters
of Arts in the Humanities. He is an accomplished writer, recently earning a national award from
the PEN American Center Prison Writing Program Literacy Contest. See, Exh. ‘X’. On his own
initiative, he has successfully completed courses in subjects ranging from philosophy to Bible
study. He has actively pursued a program of rehabilitation and reconciliation with his father, the
surviving victim of his offense.
Not only does Mr. Whitaker seek to better himself, as
94
Correctional Officer Jack Holbrook has observed, he encourages those around him to better
themselves. See, Exh. ‘S’, at 6.
Mr. Whitaker’s pattern of behavior since his offense conclusively demonstrates that he
does not pose a threat of violence to others, particularly in a prison environment. He is not –
and, since his offense, never has been – a “future danger.” Because his sentence is predicated on
a factually inaccurate judgment, that sentence is arbitrary and violates the Constitution.
CLAIM FOUR
DEATH BY LETHAL INJECTION VIOLATES THE EIGHTH AMENDMENT
OF THE CONSTITUTION OF THE UNITED STATES
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST., AMEND. VIII. Mr. Whitaker has been sentenced to die by
lethal injection. This method of administering the death penalty was challenged recently on the
ground it constitutes cruel and unusual punishment. Brown v. Crawford, 4:05-cv-746 (8th Cir.
2005). Petitioner requested a stay of execution from the Supreme Court, which was denied. Sup.
Ct. No. 04-10165 [05-2310]. However, scientific investigation into the administration of three
drug “cocktails” similar to that used in Texas call into question whether the practice is humane.
See, Prisoners 'aware' in executions, http://news.bbc.co.uk/2/hi/health/4444473.stm.
Writing in the Lancet, the researchers, led by Dr Leonardis Koniaris, said:
"We certainly cannot conclude that these inmates were unconscious and
insensate.” “However, with no monitoring and with little use of the
paralytic agent, any suffering of the inmate would be undetectable.” They
add: "The absence of training and monitoring, and the remote
administration of drugs, coupled with eyewitness reports of muscle
responses during execution, suggest that the current practice for lethal
injection for execution fails to meet veterinary standards.” In an
accompanying editorial, the Lancet said: "Capital punishment is not only an
atrocity, but also a stain on the record of the world's most powerful
democracy.” "Doctors should not be in the job of killing."
95
On Eighth Amendment grounds, Thomas Whitaker requests relief from his sentence of death,
and leave to supplement his briefing with developing medical and forensic evidence.
REQUEST FOR RELIEF
WHEREFORE, Thomas Bartlett Whitaker, requests that this Court:
1.
Issue a writ of habeas corpus to have him brought before it, to the end that he may
be discharged from his unconstitutional confinement and restraint and/or relieved of his
unconstitutional sentence of death.
2.
Grant him an evidentiary hearing at which he may present evidence in support of
the foregoing claims, and allow him a reasonable period of time subsequent to any hearing this
Court determines to conduct, in which to brief the issues of fact and of law raised by this petition
or such hearing.
3.
Grant a certificate of appealability with respect to any claim that is denied.
4.
Grant leave to brief, through separate pleadings, issues regarding the State courts’
satisfaction of standards under 28 U.S.C. § 2254(d) and § 2254(e).
5.
Grant such other relief as law and justice require.
Respectfully submitted,
HILDER & ASSOCIATES, P.C.
By:
96
/s/_James G. Rytting____________
Philip H. Hilder
State Bar No. 19620050
James Rytting
State Bar No. 24002883
819 Lovett Boulevard
Houston, Texas 77006
Telephone (713) 655-9111
Facsimile (713) 655-9112
ATTORNEYS FOR PETITIONER
VERIFICATION
I, James Rytting, state that to the best of my knowledge, the facts alleged in support of
the claims in this case are true and correct, under penalty of perjury, as proscribed by Title 18
U.S.C. § 1746; and I hereby sign on behalf of Petitioner, Thomas Bartlett Whitaker.
/s/ James G. Rytting
James Rytting
CERTIFICATE OF SERVICE
On October 14, 2011, Respondent was served by ECF with this Amended Petition.
/s/ James G. Rytting
James Rytting
97
LIST OF EXHIBITS
‘A’ - 2009 Affidavit of Dan Cogdell
‘B’ - 2009 Affidavit of James “Jimmy” Ardoin
‘C’ - 2009 Affidavit of Assistant District Attorney Fred Felcman
‘D’ - 2009 Affidavit of Norman Kent Whitaker
‘E’ - 2009 Affidavit of Randy McDonald
‘F’ - 1997 Report of Dr. Brendan O’Rourke
‘G’ - 2005 Report of Dr. Jerome Brown
‘H’ - 2009 Report of Dr. Kit Harrison
‘I’ - Subpoenas served on Dr. Brendan O’Rourke
‘J’ - Affidavit of Assistant District Attorney Jeff Strange
‘J.1” – January 5, 2006, Proffer
‘K’ - Pre-Trial Notes of Dr. Brendan O’Rourke
‘L’ - 2011 Affidavit of Dr. Brendan O’Rourke
‘M’ - 2011 Report of Dr. Diane Mosnik
‘M.1’ - 2011 Report of Dr. Kit Harrison
‘N’ - 2011 Affidavit of Kent Whitaker
‘O’ - Excel Spreadsheet
‘P’ – Affidavit of Silvia Edith Salazar Toscano
‘Q’ – Affidavit of Ubaldo Salinas Muñoz
‘R’ – TDCJ letter regarding no Use of Force Reports
‘S’ – Affidavit of Jack Holbrook
‘T’ – Affidavit off Paul Hughes
98
‘U’ – TDCJ Disciplinary Report and Hearing Record
‘V’ - TDCJ Unit Classification Committee History Form (and Subsequent Hearings)
‘W’ – Academic Transcript - Adams State College, Colorado
‘X’ – Letter from PEN Prison Writing Program
99

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